Places of Worship Act 1991 | SabrangIndia

“Civil courts can’t run a race with the Supreme Court” says SC Bench while putting a stay on orders for surveys on Places of Worship

sabrang — Thu, 12 Dec 2024 14:16:42 +0000

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.

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Special SC bench to hear challenge to 1991 Places of Worship in December

sabrang — Sat, 07 Dec 2024 11:08:53 +0000

After years of delay, the Supreme Court has set up a special bench to hear petitions challenging the Places of Worship Act, 1991, on December 12. The bench will be headed by Chief Justice of India Sanjiv Khanna and include Justices Sanjay Kumar and K V Viswanathan.

The Act –that was passed declares that the character of a place of worship as of August 15, 1947, shall be maintained and that no suit or proceeding shall lie in any court in respect of any dispute against the encroachment of any religious properties at any point in time before this date.

It also says that any such pending proceeding shall stand abated and that any proceeding filed on the grounds that conversion of religious place has taken place after August 15, 1947, and before September 18, 1991 (when the Act came into existence), shall be disposed of to maintain the status as existed on August 15, 1947. In May 2022, as the challenges to the Gyan Vapi Masjid grew, Teesta Setalvad, co-editor SabrangIndia traced the unanimity in Parliament when the Act was passed. The law had been passed and enacted into law during the peak of the Ram Janmabhomi movement. KL Advani’s blood filled rath yatra had traversed the country leaving violence and destruction in its wake. It was a Congress government under Prime Minister P.V.Narasimha Rao –who later ‘oversaw the destruction’ of the Babri Masjid months later—that tabled and thereafter enacted the law. The words of then Home Minister S.B.Chavan, as he introduced the Bill are prescient, “It is considered necessary to adopt these measures in view of the controversies arising from time to time with regard to conversion of places of worship which tend to vitiate the communal atmosphere… Adoption of this Bill will effectively prevent any new controversies from arising in respect of conversion of any place of worship…”

Not only has the law not been allowed to serve the purpose –given the ambivalence of the higher judiciary in enforcing it –but today the very forces that opposed its enactment (Bharatiya Janata Party and its ideological fountainhead the Rashtriya Swayamsevak Sangh-RSS) rule India and several states.

After capturing power in 2014, several petitions have challenged the Act saying it bars the remedy of judicial review, a basic feature of the Constitution, and is therefore outside the legislative competence of the Parliament. The Act, petitioners have said, also violates the principle of secularism.

“The result (of this Act) is that Hindu devotees cannot raise their grievance by instituting any suit in civil court or invoking the jurisdiction of the High Court under Article 226 of the Constitution of India against the high handiness of ultras and will not be able to restore back the religious character of Hindu Endowments, Temples, Mutts etc from hoodlums if they had encroached upon such property before 15th August 1947 and such illegal and barbarian act will continue in perpetuity,” the petitioners have claimed in one of the cases.

Finally, the Supreme Court had issued a notice on the petitions and sought the Centre’s views on March 12, 2021. The hearing was thereafter adjourned multiple times following requests from the Centre for more time to respond. However, despite multiple adjournments, the government of India is yet to file a reply.

The Challenge to Places of Worship Special Provisions Act, 1991 is Misconceived

When the Supreme Court directed protection for the Gyan Vapi Mosque, upheld the Places of Worship Act, 1991 (1994, 1995, 1997)

When and How Ram Vilas Paswan made a strong pitch for the Places of Worship Act, 1991

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When the Supreme Court directed protection for the Gyan Vapi Mosque, upheld the Places of Worship Act, 1991 (1994, 1995, 1997)

sabrang — Sun, 04 Feb 2024 15:20:51 +0000

A timeline

In the months prior to the demolition of the Babri Masjid on December 6, 1992, a violent mobilisation led by men who were to rise to constitutional posts (Atal Bihari Vajpayee and LK Advani), the Indian Parliament passed the Places of Worship Act, 1991. This law was meant to ensure that no place of worship of any religious dispensation was ever made subject to such an ignominious mobilization, again. On the radar of the supremacist Rashtriya Swayamsevak Sangh (RSS), Vishwa Hindu Parishad (VHP) and Bajrang Dal have been dozens of mosques and shrines the most prominent being the Gyan Vapi Mosque at Kashi (Varanasi) and the Shahi Idgah Mosque at Mathura. “Ayodhya sirf Jhanki hai, Kashi Mathura Baki Hai” (Ayodhya is but a glimse, Kashi, Mathura yet to be done) is the slogan that rang on Indian streets where the mob ruled in the early 1990s.

In November 1993, then again 1994-95 and 1997, petitioner Mohammed Aslam alias Bhure who was an active litigant in the Babri Masjid case petitioned the Supreme Court of India expressing concern and anxiety praying for express ideas to protect the Gyan Vapi Mosque and the Shahi Idgah one too.

Three separate benches of the Supreme Court of India made it explicitly clear that the Places of Worship must be protected and the law (PWA, 1991) strictly implemented.

Sabrangindia has accessed these orders and presents a timeline:

1994 Justices M.N. Venkatachaliah, Chief Justice, S Mohan and Dr AS Anand passed an Order in September of that year. (Mohamed Aslam Bhure had petitioned the Court in November 1993.)

Reiterating seven prayers listed by the petitioner in its Order, the Supreme Court makes specific observations on prayer (v) that asks for cases to be registered as per provisions of Places of Worship (Special Provisions) Act, 1991, against any person who violates the Act by causing damage or converting these places from their existing religion to the religion of other denominations.

The Observations of the Supreme Court are telling:

“So far as prayer (v) is concerned, it is the statutory obligation of the State to enforce the provisions of the Act. It does not need reiteration that the duty is a fortiori in matters of such serious public concern. In view of the plain obligations of the State to enforce the law, any direction on the hypothetical possibility of violation, amounts to no more than recanting the provisions of the statute itself.” (Para 4)

Ironically, at the time of recording of the 1994 Order as the judgement itself documents, the District Magistrates of both Mathura and Varanasi and the Home Secretary to the State Government of Uttar Pradesh were present in the Supreme Court.

Noting this the Supreme Court observes,

“Learned Attorney General (then Milon Banerjee) submitted that after the events of December 6, 1992, the Central and State Governments are keenly alive to the need for an appropriately heightened security environment respecting places of worship referred to, and that the Governments are straining every nerve and resource to ensure such safety. Learned Attorney General submitted that adequate security measures for safeguarding these places of worship have been enforced and in operation…..” (Para 6)

The matter does not end there. The judgement goes on to record:

“Shri AK Ganguly (then Solicitor General), upon instructions from the District Magistrates and the Home Secretary submit that the prayers sought for by the petitioner are, indeed, the subject matter of deep, anxious and committed concern of the Government and all precautions and safety measures have been evolved and are in operation with respect to these places of worship. (Para 7)

Given the fact that, as the three judge bench of the Supreme Court observes, both the State and Central Governments are keenly alive to the problem and have taken adequate steps and these measures are already in operation, no further specific directions are passed by the Court. (Para 8)

The entire SC Order may be read below.

1995 Justices BN Kirpal, Chief Justice, SC Sen and two others passed an Order in August of that year. (Mohamed Aslam alias Bhure had petitioned the Court in 1994.)

Again, it was petitioner Mohammed Aslam alias Bhure who petitioned the court invoking the Places of Worship Act, 1991.

The Order of the Supreme Court observes, that,

“..the Petitioner has filed this petition to ensure protection of the Gyanvapi mosque at Kashi – Banaras and Shahi Idgah Mosque Mosque at Mathura, both in the State of U.P. In this behalf he has also invoked ‘the provisions of the Places of Worship ( Special Provisions) Act, 1991, which, says he, prohibits conversion of any place of worship of any religious denomination into a place of worship of a different section or religious denomination and enjoins maintenance of the status of all religious places as on 15.8.’47. The expression ‘place of worship’ inter alia includes a mosque. Lastly, he contends that Article 49 casts a duty on the state to protect monuments and places or objects of artistic of historical interest.”

“The reliefs claimed the essentially in the nature of directions to be issued to the respondents which include the state of UP, it’s chief Minister as well as the Union of India and their officers and servants to take adequate precautionary measures to protect the two mosques from the threats posed by the office bearers, workers and volunteers of the VHP, Bajrang Dal and the BJP. Directions are also sought to ensure, that people in large numbers do not collect at the two sites. There is also a prayer for the appointment of Union of India as a Receiver of these places.

“While we appreciate the concern and anxiety of the petitioner we see no reason to believe that the Central Government and the State Governments are remiss about performing their statutory and constitutional obligations referred to by the petitioner. It is their duty to take all such measures as are necessary including the restrictions on the number of people visiting the aforesaid place or places of worship to protect the said two places from possible and apprehended assaults. The two Governments, we are sure, are mindful of their obligations and we have no reason to doubt that they will be found wanting in the performance of their constitutional and statutory duties of protecting those places: Good governance demands that of them and it is also essential for the maintenance of law and order, peace and tranquility.”

A copy of this Order of the Supreme Court reiterating its faith in the State and Central government’s commitment to the rule of law was sent to the Chief Secretary of the State of U.P. as well as to the Secretary of U.P. as well as to the secretary, Ministry of Home Affairs, Government of India, by the Registrar General of this Court by FAX message for information and necessary action.

The third significant order of the Supreme Court in the matter, in the immediate wake of the demolition of the Babri Masjid was passed in 1997.

1997 Order of the Supreme Court, Justices AM Ahmadi, Chief Justice and Sujata V. Manohar. (Mohamed Aslam Bhure had petitioned the Court in November 1996.)

Again, at the outset, the Court observes that the matter relates to protection of the two places of worship, the Court notes the previous 1994 and 1995 Orders of the Supreme Court where specific directions to both to implement the Places of Worship (Special Provisions) Act, 1991 and protect both the shrines (Mosques) were given, the Court proceeds to issue specific and clear directions.

The Supreme Court Order recounts that the Order passed by a Judge (of a Court subordinate to the Supreme Court!) “ensuring status quo” has caused some “difficulty” as by that the police seems to interpret the order to mean that barricades to protect the Mosques cannot be strengthened, enhanced or added to. The Court then, in 1997 proceeds to recount (the abovementioned pararaphs) from the Supreme Court Order of August 17, 1995 (B.N. Kirpal, SC Sen and two others) wherein the SC had made it abundantly clear that all necessary steps must be taken by the authorities “to protect the places of worship.”

Moreover, the Supreme Court specifically observes,

“We do not think that the Government and police authorities would have any difficulty in understanding our previous order and to understand the same since we had in no uncertain terms permitted them to do everything that is necessary to protect the places of worship. No order of any subordinate court can be construed to run counter to this Court’s Order.” (Para 2)

Clearly with the very nature of the state undergoing a drastic change, some would argue in a worryingly anti-constitutional direction, today in the third decade of the 21^st century, close to 25 years later, the directives in these first orders of the Supreme Court related to the Gyan Vapi Mosque at Varanasi and Shahi Idgah Mosque at Mathura fall on deaf years. The hasty fashion and manner in which “prayers” were allowed inside the Gyan Vapi Mosque on the late evening of February 1, 2024, after an order of a subordinate question, begs these questions.

While these Orders in this sensitive case were not available on the Supreme Court, Sabrangindia has accessed them from law archives

1994 Justices M.N. Venkatachaliah, Chief Justice, S Mohan and Dr AS Anand passed an Order in September of that year may be read here

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1995 Justices BN Kirpal, Chief Justice, SC Sen and two others passed an Order in August of that year may be read here

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1997 Order of the Supreme Court, Justices AM Ahmadi, Chief Justice and Sujata V. Manohar may be read here

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Centre seeks time to respond for ‘detailed consultations’: Plea challenging Places of Worship Act in SC

Mon, 14 Nov 2022 11:18:32 +0000

Image: Live Law

The Centre has been granted time till December 12 to file a comprehensive affidavit in response to pleas challenging certain provisions of the Places of Worship Act, 1991. A bench comprising Chief Justice D Y Chandrachud and Justice J B Pardiwala was informed by Solicitor General Tushar Mehta that the Centre was deliberating the matter at the highest level and thus was seeking more time to file response, which has been pending since March 2021. The case will be heard in the first week of January 2023.

The Act, legislated by Parliament in the backdrop of the Ramjanmabhoomi agitation, freezes the status of religious places as they existed on August 15, 1947. After the Babri mosque demolition, the central government passed this law to save and protect the religious character of all places of worship, to avoid any such communal disturbances in the future. The law kept the Ram Janmabhoomi-Babri Masjid dispute out of its purview, without citing any reasons for the same but probably because the case was sub-judice at that point in time.

About the petitions

Former BJP Delhi Spokesperson Ashwini Upadhyay, BJP Rajya Sabha Member Dr. Subramanian Swamy, and others filed writ petitions challenging the Places of Worship Act, 1991. Moreover, parties filed roughly 15 impleading petitions, some of which were in favor of the law and others of which were against it. The petition by Ashwini Upadhyay alleged that the 1991 law creates an “arbitrary and irrational retrospective cut-off date” of 15 August, 1947, for maintaining the character of the places of worship or pilgrimage against encroachment done by “fundamentalist-barbaric invaders and law-breakers”. He also contended that the 1991 Act took away the rights of Hindus, Jain, Buddhists, Sikhs to restore their places of worship destroyed by “barbaric invaders”.

The Royal Family of Kashi, Jamiat Ulema-i-Hind, and other parties who submitted impleadment and intervention applications were also permitted to present their arguments at the case’s hearing. On September 8, the erstwhile royal family of Kashi filed the application claiming that the Act is a “textbook example of a legislation that was passed in the most undemocratic of manners possible,” disregarding the fundamental rights of those who are harmed, especially the right of formerly colonised indigenous communities to seek the reclamation of occupied religious and cultural sites.

The Places of Worship Act

The Act 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.

One then wonders why are there suits in courts in this day and age making attempts to reinvigorate Hindu temples and why were they being entertained in courts if the law does not allow it? The language of the Act is clear when it states that no suit shall lie on or after such commencement (of the Act) in any court for conversion of the religious character of any place of worship, existing on the 15th day of August, 1947. So, clearly, it is not just a penal law that provides punishment for contravention but also disallows suits that seek to challenge places of worship.

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.

Petition against the Act is misconceived

As rightly pointed out by an article published by Newsclick, the petitions challenging the Places of Worship Act are misplaced and misconceived. The Act is rooted in the realisation that the need to protect religious places and to maintain its character is a sine qua non to avoid religious conflagrations. It was one of the contributory factors towards the evolution of secularism as an essential feature of modern constitutions. The plea to invalidate the Act and allow conversion (or re-conversion) of certain places of worship through suits, petitions or otherwise is thus not only antithetical to the fundamental values and express provisions of the Constitution, but undoes the civilisational gains of humanity in terms of secularism being a sine qua non of a peaceful and progressive society.

Even without the Act, any attempt at conversion of religious places would run counter to freedom of religion as well as to the values of liberty, equality and fraternity, which are the basic features of the Constitution. The Act expressly enunciates and delineates what is inherent in the Constitution; any such articulation cannot even remotely be unconstitutional.

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Gyanvapi case: Court dismisses mosque committee’s plea challenging maintainability of suit

Mon, 12 Sep 2022 10:02:22 +0000

Image Courtesy: jantakareporter.com

A Varanasi court has dismissed a plea by the Anjuman Intezamia Masjid (AIM), which is the Gyanvapi mosque management authority, challenging the maintainability of the suit filed by Hindu petitioners who had demanded that they be allowed to offer prayers at the temple of deity Shringar Gauri located on the mosque premises.

The court of district judge Ajay Krishna Vishvesha held that the suit was neither barred by the Places of Worship Act, nor the Waqf Act, and was thus maintainable under Order 7 Rule 11 of the Civil Procedure Code. Therefore, the court dismissed the plea by AIM.

The AIM had argued that the suit was not maintainable under Order 7 Rule 11 (d) that says that a court can reject a plaint if “the suit appears from the statement in the plaint to be barred by any law.” According to the AIM, in this case, it was barred by the Places of Worship Act which forbids changing the character of any place of worship from what it was on Independence Day i.e August 15, 1947.

Meanwhile, the Hindu petitioners had contended that prayers had been offered at the Shringar Gauri temple, located along the outer wall of the Gyanvapi mosque till 1993. They said that they merely wanted to resume prayers.

Speaking to SabrangIndia, S M Yasin, general secretary of AIM, said, “The court ruled that the suit did not demand that the character of the place be changed and that is why the Places of Worship Act was not applicable.” Speaking about next steps, he said, “We are holding discussions with our lawyer and will soon challenge today’s judgement before the Allahabad High Court.”

Hearings will now continue in the main suit, i.e the plea where Hindu women have demanded the right to offer prayers at the temple of the deity Shringar Gauri, on September 22.

This story will be updated with a copy of the court order when it becomes available.

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SC to hear pleas challenging the Place of Worship Act on October 11

Fri, 09 Sep 2022 13:33:25 +0000

On September 9, the Supreme Court permitted all the applications, including the plea filed by Jamiat Ulama-i-Hind, to intervene in the hearing of the pleas on the validity of the Places of Worship (Special Provisions) Act, 1991.

A three-judge bench comprising Chief justice Uday Umesh Lalit, Justices S Ravindra Bhat and P S Narasimha also granted two weeks to the Centre to file its reply on pleas challenging the validity of certain provisions of the Places of Worship Act, 1991, which prohibit the filing of a lawsuit to reclaim a place of worship or seek a change in its character from what prevailed on 15 August, 1947.

The bench ordered that the matters be heard by a three-judge bench on October 11 and asked the parties to complete the pleadings by then.

LiveLaw quoted an excerpt of the IA: “The haste with which the Act was passed by the then dispensation without sufficient notice to members of the Parliament, in particular, the then Opposition, evidences the premeditated intent to not subject the contents of the Act and its implications to a democratic and informed debate. Quite apart from the problems associated with the process itself, it is humbly submitted that the direct consequence of the process as well as the end result is the unconstitutional truncation of the rights of affected indigenous communities to knock the doors of Courts of this country to seek enforcement of their fundamental rights and restoration of occupied sites to the original owners/stakeholders/guardians.”

Dr. Subramanian Swamy, the leader of the Bharatiya Janata Party, attempted to argue that the PoW Act should be read down in order to exempt the Kashi Vishwanath and Mathura Temple from its provisions. It is noteworthy that both temples are currently in the middle of litigations w.r.t mosques being built alongside them. However, senior advocate Rakesh Dwivedi representing the petitioner Ashwini Upadhyay argued that the issue of reading down wouldn’t come up until the court considered whether the Act was constitutional.

The debate over the PoW Act that a five-judge panel had in the Ayodhya ruling was brought up by advocates Ejaz Maqbool and M.R. Shamshad. The petitioners argued, however, that those remarks are obiter and not part of the ruling.

The Varanasi Court has deferred decision on the maintainability of the action pertaining to the Gyanvapi mosque, advocate Vishnu Shankar Jain, who is appearing in one petition, informed the bench. He continued by saying that he is contesting the statute on the grounds that the right to judicial review cannot be restricted and that he is relying on the ruling in the Minerva Mills case. For the Kashi Royal family, advocate J. Sai Deepak argued that one site of worship (Ayodhya) cannot have more rights than another place of devotion. As a result, the PoW Act is unconstitutional under Articles 14 and 26.

It was also highlighted in the said plea that despite both being regarded as Lord Vishnu incarnations and receiving equal reverence, the Act omitted Lord Rama’s birthplace while included Lord Krishna’s. Therefore, the act was arbitrary and unreasonable, the plea contended.

When the bench questioned Solicitor General of India Tushar Mehta on whether the Centre had submitted a response, the SG responded in the negative. As per LiveLaw, CJI Lalit stated that “We will issue notice in all these IAs. Today we are in combination of three but it should be with two judges. It has been pointed out that there are certain paras in Ayodhya judgment where the attention of the court was invited to legislation. Other side disagrees. These are matters to be taken up. So we will make that observation. Whether it comes before us cannot be said. But it will come before three judges.”

According to LiveLaw, the CJI read out the order: “A bench of two judges of this court issued notice in the matter on 12th March 2021. Thereafter this petition has been coming up on few occasions. However Union of India has not put in any response. The Solicitor General, Tushar Mehta has been granted two weeks to file affidavit. Rejoinder to be filed a week thereafter, if any. There is a host of applications seeking impleadment. We allow all these applications and give liberty to concerned applicants to intervene. The intervenors are to file written submissions which shouldn’t exceed 5 pages. WP (C) 559/2020 raises similar issues. We therefore formally issue notice in that Writ Petition. Considering the issues involved in the matter, in our view the matter is suitable to be heard by 3 judges. Copies of all intervention applications may be digitally shared with all counsels. The registry is directed to list the matter before appropriate bench on 11th Oct 2022. In the meantime, all parties are directed to complete pleadings in the matter so that matter can be considered on the next date.” The CJI also orally remarked that– “These are preliminary dates. Nothing will happen on these dates…”

Places of Worship (Special Provisions) Act, 1991 was enacted to prohibit conversion of any place of worship belonging to one religion or any section or denomination thereof into that of another religion, with Indian Independence Day i.e August 15, 1947 serving as the cut-off date. This was done in the wake of Ramjanmabhoomi and Babri Masjid issue for which Section 5 of the Act provides an exception i.e. the Act does not apply to the places of worship in the Ram Janmabhoomi and Babri Masjid issue.

In particular, Ashwini Upadhyay’s plea challenges Sections 2, 3, and 4 of the Act, arguing that they deny Hindus, Jains, Buddhists, and Sikhs the ability to legally regain their places of worship. Additionally, it claims that the restrictions are against the fundamental tenet of secularism and are against the State’s obligations under Articles 49 and 51A of the Indian Constitution to safeguard religious cultural heritage and protect historic sites. Further, the provisions are said to offend Article 14 (right to equality), Article 15 (right against discrimination), Article 21(right to life & personal liberty), Article 25 (right to pray practice prorogate religion), Article 26 (right to manage maintain administer places of worship-pilgrimage) and Article 29 (right to conserve culture) of the Indian Constitution.

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Article 32 cannot be invoked to enforce all disputes relating to the Places of Worship Act: SC

Thu, 04 Aug 2022 09:22:08 +0000

Last week, the Supreme Court refused to entertain a plea filed under Article 32 of the Constitution by members of the Mohijit Samudaya of the Tapagachh demonimation of the Shwetambar Murtipujak Jain religion seeking to enforce the Places of Worship (Special Provisions) Act, 1991 against the alleged conversion of places of worship by another segment of the same denomination, reported LiveLaw.

Generally, a constitutional remedy is pursued when the fundamental right which is Right to Freedom of Religion in this case, is violated by the state or its action. In this case however, the petitioner was not allowed into their temple by members of another denomination of the same sect of the same religion the petitioner belongs to.

SC on dispute between two sects of the same religion

The petitioners prayed that directions to not convert temples be issued by the apex court so that the directions will be applied to all of the country. The Bench remarked that the issue was not a case of conversion. “This is not a case of conversion…This is a dispute between two groups of the same sect. You are prevented from entering, not a case of conversion at all,” remarked the bench. The Supreme Court stated that when there is a dispute between two sects of the same religion, their dispute should first be settled in the trial court, since the rights they claim will have to be first recognised with evidence in the trial court.

Observations regarding Maintainability despite invoking the Places of Worship (Special Provisions) Act, 1991

Article 25 of the Indian Constitution grants the Freedom of conscience and free profession, practice and propagation of religion to India’s citizens. However, since in this particular case, the dispute is between two sects of the same religion, the existence of any rights the petitioners included in their averments will have to be proved with evidence in a trial court.

The court observed that invoking the Places of Worship (Special Provisions) Act, 1992 is not enough ground to entertain a petition under Article 32 and stated that the petitioners might explore other avenues such as an FIR against those who are not allowing entry into the temple or file a suit under Section 92 of the CPC which deals with Public Charities’ related suits.

The bench also remarked that correct law is not being followed, reportedly stating, “Problem is we don’t follow CPC. We want to convert all civil cases into criminal ones. You have a remedy under section 92 of CPC. Entertaining this will turn upon the evidence. Evidence will have to be given and some monk has to step into evidence box!”

This is rather aligned with SC’s reasoning in another case where five Hindu women had moved SC seeking unrestricted access to offer prayers at a temple of Goddess Shringar Gauri that is located on the premises of the Gyanvapi mosque. The women had contended that this was not changing the character of the place of worship as traditional Hindu prayers had been held at the spot till as recently as 1993. However, the SC announced that it would wait for the Varanasi district judge’s court to first rule on the maintainability of the suit where the Anjuman Intezemia Masjid (AIM) or the Committee that manages the Gyanvapi mosque had claimed that the suit should not be entertained due to provisions of Order 7 Rule 11 of the Civil Procedure Code (CPC) that prohibits a court from admitting a suit if there is an existing law that prohibits the said suit – in this case the Places of Worship Act.

Notably, a petition challenging the constitutional validity of the Places of Worship (Special Provisions) Act 1992, itself, is pending before the Supreme Court.

The significance of this order is the indication from the Supreme Court and it reaffirming the principle that suits regarding religious places of worship be filed in trial court rather than unnecessarily using the path of constitutional remedies.

The order may be read here:

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When and How Ram Vilas Paswan made a strong pitch for the Places of Worship Act, 1991

Thu, 19 May 2022 13:00:02 +0000

Barely 15 months before that fateful Sunday when India and the world watched, in anger and helplessness, as the 400-year-old, Babri Masjid was brought down in cold daylight even as 3,000 members of India’s paramilitary mutely looked on, the Narasimha Rao government had done little to protect shrines other than the one that Hindutva groups had then trained their guns on. Ram Vilas Paswan, a member of parliament (MP) from Rosera, Bihar, as Opposition member on behalf of the National Front at the time, had made one of the most forceful speeches in support of the proposed law.

The Places of Worship (Special Provisions) Act was passed by the Parliament and enacted into law in 1991 during the peak of the Ram Janmabhoomi movement. LK Advani’s blood-filled rath yatra had wound its way through the country, leaving violence and isolation in its wake. Then, the media, made of different orientations and characted, had warned of the dangerous build-up that was being cynically allowed to unfold.

The Places of Worship Act was brought by the Congress government of Prime Minister P V Narasimha Rao at a time when the Babri Masjid was still standing. While introducing the Bill in Parliament, then Home Minister S B Chavan said, “It is considered necessary to adopt these measures in view of the controversies arising from time to time with regard to conversion of places of worship which tend to vitiate the communal atmosphere… Adoption of this Bill will effectively prevent any new controversies from arising in respect of conversion of any place of worship…”

Last president of the Lok Janshakti Party (LJP) before he expired in 2020, Ram Vilas Paswan, a five-time Member of Parliament from Bihar during the term of the Narasimha Rao government (that assumed office in June 1991) made a powerful speech supporting the need for such a law on September 9, 1991. Then finance minister, Manmohan Singh had introduced the bill in the Rajya Sabha and Uma Bharati (BJP), Ram Naik (BJP) and Madanlal Khurana (BJP) had, predictably opposed its passage. Paswan has had the unique distinction of holding a central ministry throughout his political career under different government except between 1991-1996.

Elected then from the Rosera parliamentary constituency in Bihar, Ram Vilas Paswan said that such a law was long overdue and chastised the Indian National Congress for not bringing in such a legislation earlier he said, “The Ram Janam Bhoomi-Babri Masjid dispute would not have been arisen here at all. There cannot be two opinions in this regard. I have been pointing towards this matter earlier also and you might have felt offended then. This Bill indeed has a very laudable objective.”

Paswan had also made some prescient points in his speech about the strange and sudden emergence of the politics of the Ram Janmabhoomi movement. He had stated in his September 9, 1991 address in Parliament that, in 1969, there was a Samyukta Vidhayak Dal (SVD) Government in UP, and in 1977, there was Janata Party Government at the Centre. He asked, “Both Atal Bihari Vajpayee and Shri Lal Krishna Advani were Ministers in that Government, but why didn’t they raise that issue at that time? Why it has been raised only during the last two years?” He then criticised the erstwhile Congress government under prime minister Rajiv Gandhi for allowing such forces to raise their heads for “allowing them to conduct the ‘Shilanyar’ ceremony, and today the country is suffering on account of that.”

Ram Vilas Paswan also pointed how that, secularism, social justice and power to the poor constitute the very backbone of the country and it has been made amply clear in the 1989 manifesto of the National Front (when he was in were in the Janata Party) he had raised a demand that August 15, 1947 should be treated as a cut-off date to determine the ownership of religions places, so that all disputes relating to places to worship are settled permanently.

“… such a legislation had to be brought forward because India is the home of people belonging to many religious denominations. Our country is like a garden and here not one, but all the flowers will be given the opportunity to blossom. People belonging to many communities have made India their home. When Babar invaded India, which Hindu king was ruling the country? It was Ibrahim Lodhi, who was ruling the country at that time. Who came to India before Babur? The Aryans. There was no Hiudu-Muslim clash at that time. According to the religious people, there was war between the Gods and demons when churning of the ocean took place. Now, who were these Gods and who were these demons? Why was there a fight between Vishnu and Shiva? If we go deep into the history of all this, we won’t be able to safeguard the unity and integrity of this country. Therefore, this chapter has to be closed somewhere. We have far more important problems before us – the problem of poverty that of unemployment that of illiteracy, that of rural water supply. This country cannot affort to squabble over trifling issues like Mandir or Masjid,” said Paswan.

Reminding parliament and the country of the wise words of Smt. Savita Ambedkar, Ram Vilas Paswan had told Parliament that she had stated clearly that the “disputed site” was neither a temple, nor a Mosque, but a Buddhist place of worship and these people were saying that the site belongs to them.

Likening the situation to an episode in the Mahabharata, wherein Karna says that his funeral pyre should be lit at a place, where nobody has been cremated before and Krishna was in a predicament and he had to ultimately use his hand as a cremation site, Paswan stated that the present situation too is quite similar. He said, “Today, it is impossible to say, whether a place of worship, was a temple, a mosque or a Buddha Vihar. India attained Independence on August 15, 1947 and at that time, we had 56 crore Gods.”

Paswan added, “When we didn’t have a population of even ten crores. There are five Gods for one person, yet we have not been able to make arrangement for potable water in 5,76,000 villages in the country, but a country where there is only one God, everyone is prosperous and that country is progressing like anything. This is a religious issue. I have already said that I am not a believer. Let people believe in places of worship, according to their faith.”

“The country gained Independence on August 15, 1947. Before that, who were the masters at this country? We don’t want to go into history, and August 15. 1947 was a momentous day in the country’s history. It is such a date in the nation’s history that many among us… During the course of my speech, I have neither referred to any political party nor any political leader by name and nor do I intend to do so. The very objective of religion is to remove darkness and provide light and knowledge. A lamp can be used to light up a house as well as to burn it down. Unfortunately, today, religion is being used to spread hatred and disharmony. We will have to give a serious thought to it.”

“Mr. Chairman, Sir, ours is a country where we have people belonging to various faiths and walks of life and each of one of them should be given an opportunity to realize his maximum potential. I believe that this Bill is a right step, towards fulfilling this objective.”

“Every day, some or the other issue is raked up here. Arguments are put forward in defence of definitions of natives and foreigners. I believe that this matter is beyond the scope of argument. Today, we hear slogans like ‘Garva se kaho, hum Hindu hain’, ‘Garva se bolo, hum Musalman hain’, ‘Garva se bolo, hum Sikh hain’, but where is that soul-stirring slogan of ‘Garva se kaho hum Bharatiya hain? We are first Indians.”

Facing some interruptions from agitated sections among the BJP, Paswan’s speech is worth a read.

Paswan recalls examples of shared citizenship and sacrifice saying, “…Can anyone say that among our freedom fighters, the sacrifice made by Sardar Bhagat Singh was inferior to anyone. During the 1965 war, many of our jawans were decorated with ‘Vir Chakras’, but Abdul Hameed received the highest honour of ‘Paramvir Chakra’. Was his sacrifice, less than that of anyone? Will his sacrifice be underestimated just because be happened to be a Muslim? We attained independence on August 15, 1947. While some people chose the new State, the rest preferred to stay back. It is a fact that the country does not apprehend as much danger from Pakistan as from those within the country, who indulge in espionage and sell the country for a few silver coins. They are the worst enemies of the country.”

He spoke very presciently of the dangers of labelling sections of the Indian population anti-national and questioning their loyalty.

“Now, if people of my age, like Kumari Uma Bharti or myself start accusing the Indian Muslims of being Pakistani agents or the Indian Christians as British agents, it cannot be justified, on any ground. If one goes to U.S.A. and search for an original American, everyone would proudly say that he or she is an American. The Americans are a very united and patriotic people, irrespective of their enthnic origins. It’s high time, we too realized it and drew a dividing line between the patriots and traitors. That line cannot be drawn on the basis of religion or community, nor in the name of Ram. The issue of Ram is theirs and of those who believe in him. Dr. Ambedkar has also said a lot about Ram. I don’t want to go into that, including the fact that Sham-book was killed during Ram’s regime…”

“I want to say that there should be no objection if anyone wants to build a Ram temple, a mosque, a gurudwara or a church, But one wonders, where do these people want to take the country, by demolishing an existing structure and building a temple at that place. Do we want to take the country towards savagery?”

Uma Bharati, also a member of parliament had spoken uninterrupted before Paswan made his speech.

Paswan then said, “Madam Chairperson, I want to point out here that the proponents of Hindutva tend to forget the fact that Hindus are there not only in India but also all over the world. When on 30^th October, a rumour spread that the Babri Masjid had been demolished, some people in Bangladesh went to attack temples there. But when it came to be known that the Babri Masjid has escaped damage, the police opened fire on the rioters and about 20 people killed in the incident. But no temple was allowed to be damaged. Have the advocates of Hindutva ever thought of the repercussions on the Hindus in foreign countries, if a church or mosque is demolished in this country? Therefore, please don’t intermix politics with religion to the extent that it would prove disastrous for our own brethren…”

“Therefore, Madam Chairperson, through you, I would like to say that today the question is not of Hindu-Muslim, nor or temple, mosque or gurudwara. Today, the issue at stake is our Constitution. The issue is to save that India, for whose freedom, Hindus, Muslims, Sikhs and Christians had fought together and it is the duty of every citizen to safeguard our Constitution. The issue involves not only Hindus and Christians, but each and every citizen of this country. This is a matter concerning the Constitution and I believe that whichever Government comes to power, will have to go by the Constitution. No decision can be taken by putting the Constitution at stake. On behalf of the National Front and the Left front, I would like to warn the Union Government of disastrous consequences, if it allows the Constitution, to be subverted, constitutional provisions to be violated or if it surrenders before those forces which are aiming at subverting the Constitution. We at the National Front and Left Front would from a human chain around the Babri Masjid to protect it from those intending to demolish it. They will have to walk over our dead bodies to reach the mosque. Therefore, I would like to appeal to my countryman that those who have complete faith in our Constitution and the cardinal principals of secularism should come forward, for today our very Constitution is at stake. Yunus Saheb, Shri Syed Sahabuddin and others will tell the House about the loopholes and drawbacks of this legislation, but we support this Bill, as it is in consonance with our demand in this regard, although we, too, believe that this Bill does not carry within itself, a complete solution to this problem.”

“However, it would prove effective in checking the growing communal feeling within the country and attempts by certain forces to incite violence by declaring certain structures belonging to one community has their own. I would like to repeat that so far neither the Government’s policies not its intentions were sincere and it has had its far-reaching consequences. At least now, the Government should rise above petty politics and formulate such policies that would act as a check on those forces, which till the other day, had abused Bhindranwale for mixing politics with religion and for using the Golden Temple for political purposes. But today they are themselves indulging in politics from temple and also justifying it. Therefore, no loopholes should be left in this law.”

“Hindus are in majority in this country and the secular forces within that community have very well seen through the games of the communalists and have understood the linkage between Ram and Politics.”

“The National Front is committed to protect secularism and I urge you to follow suit. I am thankful to you for bringing forward a legislation in this regard and I extend my support to this Bill.”

Re-visiting legislative history at a time when Indian Parliament has been held complete hostage to an autocratic majoritarianism is not just crucial; it could well help temper the winds that threaten to fan uncontrollable fires.

*Teesta Setalvad is a Human Rights defender, journalist and educationist. She is the co-founder of SabrangIndia and Secretary, Citizens for Justice and Peace (CJP).

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