Gyanvapi mosque case: SC must uphold Places of Worship Act for all time to come to preserve secular fabric

Overemphasis on religion in all discourses has become the most disquieting feature of the Modi regime since it came to power in 2014 and it seems unlikely that it would end in the near future. In the imagined India of the right-wing party, all other religions as a way of life will be pushed to a less favourable and secondary status, even though this is simply antithetical to India’s Constitution.

The ongoing row over the Gyanvapi mosque situated next to Kashi Vishwanath temple complex in Varanasi has once again re-established the proposition that religion is going to be the dominant political discourse in the country. Continuous and systemic attempts will be made to revive and create disputes over the Eidgah Mathura, Gyanvapi Varanasi, Taj Mahal Agra and many more in future.

The recent burst of petitions before courts in India seeking directions to survey existing mosques to determine temple remains has brought the Places of Worship (Special Provisions) Act, 1991, back into discourse.

The PoW Act was passed by the PV Narasimha Rao-led Congress government at a time when the Ram temple movement was gaining momentum. The Act mandates that the character of all religious places

of worship should be maintained as it was on August 15, 1947, and no suit or proceedings shall lie in a court of law with respect to the character of places of worship (section 4). This effectually barred courts from entertaining cases that raises disputes over places of worship that existed as of August 15, 1947.

The PoW Act further provided that such cases already pending in various courts would stand abated. The Act was not limited to mosques but includes other places of worship of all faiths i.e. temples, gurudwaras, churches, monasteries, and any other place of public religious worship. Being a special enactment, it prevails over any other law in force.

The Ramjanmabhoomi-Babri Masjid title suit did not challenge the constitutional validity of the Places of Worship Act. However, the apex court while delivering the verdict in 2019 made two important observations: first; by prohibiting the conversion of any place of worship, the 1991 Act speaks to the future by mandating that the character of a place of public worship shall not be altered; second; the law seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on August 15, 1947 when India achieved independence from British rule.

The Bench further observed that: “The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution…”

A former BJP spokesperson Ashwini Kumar Upadhyay once again challenged the constitutional validity of sections 2, 3, and 4 of the 1991 Act. His contentions are that these provisions of Act offend Articles 14, 15, 21, 25, 26 and 29 of the Constitution, besides violating the principles of secularism, which are an integral part of the basic structure and Preamble of the Constitution.

Surprisingly, the SC admitted the petition and Temple-Mosque debate once again started which we thought would subside after Ayodhya decision. Be it may, the court will have to commence with the presumption of constitutionality of the 1991 Act. Unless declared unconstitutional by the apex court, the 1991 Act still holds good as the law of the land and binding on all the courts.

The Varanasi court order permitting survey of Gyanvapi mosque premises prima facie undermines the Places of Worship Act, 1991, which prohibits intervention in any religious place barring Ayodhya. The order was passed on a plea filed by five Hindu women to worship idols within the Gyanvapi Mosque complex in Varanasi and on the ground that the mosque was built after demolishing a temple which stood there in the 17th century.

The order has been challenged by the Uttar Pradesh Sunni Central Waqf Board and the mosque committee. The Allahabad High Court declined to intervene in the survey and therefore matter reached to the Supreme Court.

The Supreme Court in a balancing order directed the Varanasi district magistrate to protect the area where a Shivling was ostensibly found without impeding the Muslim community's right to namaj. The apex court also directed the trial court in Varanasi to desist from taking up further proceedings till May 20, 2022.

The ball once again is in the apex court which will have to face a major test of its commitment to a secular Constitution. The PoW Act which freezes the status of places of worship in 1947 and which has been upheld by the apex court must be upheld for all the times to come. If SC fails, all old disputes would once again open up for debate which is definitely not good for the secular fabric of the nation.

Assuming that constitutionality of PoW Act was not a question before the apex court bench in the Ramjanmabhoomi case and hence not binding, the observations of the constitution bench running in around ten pages must not be discarded. A change of opinion by the Supreme Court so frequently would not only undermine the rule of law but also dent the trust of citizenry, especially minorities.

(The writer is Professor of Law at National Law University Odisha. Views are personal)