It is precisely issues of Hindu civilisational import that the highest constitutional court of the country must be dealing with instead of being reduced to a court of appeals for every commercial matter. … The Places of Worship Act legislation should not have been passed in the first place. – J. Sai Deepak
The Supreme Court’s admission of a PIL challenging the Places of Worship (Special Provisions) Act,1991 and Varanasi court’s direction for an archaeological survey of Gyanvapi Mosque adjoining the Kashi Vishwanath Temple has triggered a fresh debate on destruction of temples in India. The Act prohibits any change in the character of religious places as they existed on August 15, 1947. The Act was passed by the Congress government headed by then Prime Minister Narsimha Rao in 1991. The Ayodhya case was, however, kept outside the purview of the Act. In 2019, while pronouncing the Ayodhya judgement, the Supreme Court had referred to the Act and said that it “imposes a bar on the institution of fresh suits or legal proceedings”. The court in its verdict made several references to the Act, underlining its objective as stated in the law that it wanted to avoid further controversy by going into the disputes of the past. The apex court’s observation on the Act was taken as its approval to the legislation and was thought that it might prevent the lower courts from entertaining any fresh legal suits. But a Varanasi court’s order directing an ASI survey of Gyanvapi Mosque came as the first blow to that understanding. But even before that, the SC had already admitted a PIL challenging the validity of the 1991 Act. The SC has sought the Centre’s view on the Act. While the BJP had opposed the law in 1991, it never raised this issue in the last seven years in its second spell under Prime Minister Narendra Modi. To understand the legal nuances of SC’s observation in Ayodhya verdict and the ASI survey direction by a Varanasi court, Financial Express Online reached out to noted Supreme Court lawyer J. Sai Deepak.
Q : The Places of Worship (Special Provisions) Act, 1991 has been challenged in the Supreme Court. Is the plea maintainable considering that the SC has given its approval to the law in the Ayodhya verdict?
A : The Places of Worship Act, 1991 (“PoW”) is a legislation that was passed by the Narasimha Rao-led Congress government without any kind of consultation with the affected Indic communities. Was any study undertaken by the Law Commission at the behest of the then Government before the Act was passed? None. The Act was imposed on the affected communities without sufficient prior notice to the then Opposition which was led by the BJP. There was no credible discussion on the impact of the legislation on the rights of affected Indic communities under Article 25 of the Constitution. In fact, the PoW Act unconstitutionally forecloses the rights of such communities to approach the courts for judicial redressal of continuing historical injustices. Therefore, on the face of it, the Act is unconstitutional, and is liable to be struck down.
As for the maintainability of the PIL challenging the PoW Act in light of the SC’s observations on the Act in the Ayodhya Verdict, I have written on more than one occasion in The New Indian Express and the Open Magazine explaining how the Ayodhya judgement does not and cannot lend constitutional validity to the PoW Act. The Ayodhya verdict was delivered by the Supreme Court in appeals which arose from the 2010 judgment of the Allahabad High Court over the then-disputed land in Ayodhya. The PoW Act, on the other hand, is a statute designed 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 the 15th day of August, 1947…”. Pertinently, Section 5 of the said Act expressly exempts the legal proceedings in relation to Shri Ramjanmabhoomi from the application of the Act. This was recognised by the Supreme Court itself in Paragraph 80 of the Ayodhya judgment. Clearly, there was no need for the court to discuss the Act in the context of Shri Ramjanmabhoomi. And yet, the court deemed it fit to discuss the Act in over 10 pages, with the central thrust of its deliberation being “the Constitution’s commitment to secularism”.
Given the non-application of the PoW Act, and hence its irrelevance to the Shri Ramjanmabhoomi case, the observations of the Constitution Bench must necessarily be treated as not legally binding. This is, in fact, the law laid down by the Supreme Court itself in its various judgements like in Jagdish Lal v. State of Haryana (1997), Director of Settlements, AP vs MR Apparao (2002). In the said judgments, the Court held that only those of its adjudicatory observations in a given judgment, which related to issues that arose for its consideration in a given case, would have a legally binding character under Article 141.
Applying the above principle to the Court’s discussion on the PoW Act in the Ayodhya verdict, since it was neither relevant for adjudication of the title dispute in the facts of that case, nor would its absence have made a difference to the outcome in any manner, the discussion does not acquire a legally binding character under Article 141. Therefore, the PIL challenging the PoW Act is maintainable without a doubt.
Q : The Varanasi court has directed an archaeological survey of the Gyanvapi Mosque adjoining Kashi Vishwanath Temple. How do you see this order in light of the Places of Worship Act?
A : The order is not in violation of the Places of Worship Act, 1991 because the Court has merely directed the ASI (Archaeological Survey of India) to undertake an excavation under the existing structure, which does not alter the status quo. However, according to me, even this exercise is not necessary because the structure as it stands above the ground clearly shows that the base structure is the temple. Not just that, it is in the vicinity of the current sanctum sanctorum of the Vishwanath Mandir and there is even a Nandi facing the disputed structure—surely there is no history of Nandi standing outside a mosque in Islamic tradition. Therefore, although an excavation may not be needed to establish that it is an occupied holy site, it will certainly serve to strengthen the position that the claims made with respect to the temple are not unfounded or baseless.
Q : But will it not open Pandora’s box and there will be chaos as we might see thousands of such cases coming from across the country? How do you think courts can deal with this?
A : No such consideration seemed to have weighed on the Supreme Court’s mind when it passed the Sabarimala verdict of September 2018 despite active opposition from the women devotees of Lord Ayyappa in Kerala and the world over. So why should such a consideration weigh on the Court in the context of the PoW Act? Surely it cannot be our case that the challenge to the PoW Act merits extra-judicial and extra-constitutional considerations by the Supreme Court. Importantly, since Bharat does not have an institutionalised mechanism for truth and reconciliation, until the legislature and the Government come out with a mechanism for the same, people must have the right to resolve such issues through the medium of courts. After all, it is much better than people resorting to the streets. Isn’t that what the rule of law, respect for the law and constitutional morality ultimately mean? In any case, some people resorted to fear-mongering during the entire duration of the Ayodhya proceedings that if the disputed structure was not rebuilt, it would lead to unsavoury outcomes. Similar fears were aired about Article 370. But the aftermath of the Ayodhya verdict and the amendment to Article 370 have shown that Bharat has the ability to peacefully embrace historical justice. So, let’s put faith in the people and let courts discharge their constitutional duties without fear or favour.
Q : Once the courts take this up, this may not be restricted or limited to only Varanasi or Mathura. There are claims that 40,000 temples had been destroyed by ‘invaders’. Where will it end?
A : The assumption that the issue of temple reclamation is limited to Kashi and Mathura after Ayodhya is factually and historically incorrect. After all, temples were destroyed all over the country over a prolonged period. Shri Sita Ram Goel and Shri Arun Shourie have written extensively on the subject, including how attempts were made to whitewash history ostensibly in the name of “secularism”. In his piece Hideaway Communalism, Shourie detailed the attempts by certain leading seminaries to hide primary sources which narrated and extolled the destruction of temples in various parts of the country by colonisers and the motivation behind such destruction. In any case, no one can make concessions on behalf of affected temples and communities since it is a matter of property rights as well as religious rights. As for where this will end, honestly it will end with acknowledgement of truth which will, hopefully, prevent history from being repeated.
Q : Is this only a Mandir vs Masjid dispute?
A : No, because there is sufficient recorded history which evidences the destruction of temples in the South and in Goa by European colonisers as well. For instance, history suggests that the well-known St. Thomas Cathedral Basilica in Chennai was built by the Portuguese after destroying the original Shri Kapaleeshwarar Temple which had to be moved to Mylapore in Chennai to protect the deities from the marauding Portuguese Christians. Similarly, A.K. Priolkar’s book on the Portuguese Inquisition in Goa, also known as the Goa Inquisition, and several other scholarly works credibly support the claim that several churches in Goa and across the Konkan were built after razing Hindu places of worship to the ground. This is not surprising since Spain and Portugal were given the mandate by Pope Alexander VI to colonise, enslave and convert the “New World” i.e. the non-Christian world including Bharat.
Importantly, since the PoW Act is neutrally worded, in the sense that it does not ostensibly target or foreclose the rights of any particular community, why don’t we apprehend claims by non-Hindus, in particular Muslims and Christians, on Hindu places of worship if the Act were to be struck down or repealed? Doesn’t this mean that the opponents of Hindu reclamation of occupied sites are aware of historical realities?
Q : Unlike Ayodhya or Varanasi and Mathura, there are no mass movements for other 40,000 temples. Would it not be fair to just leave this issue and move ahead in the interest of peace, this is another side of argument?
A : If a mass movement is started, people are happy to call it “majoritarianism” and “Hindu communalism”, and if there is no mass movement, people question the legitimacy of the claims. It seems to be a case of heads I win tails you lose. In any case, as long as there is even a single person asserting her or his rights under Articles 25, 26 and 29, there is sufficient legal basis for reclamation. Fortunately, unlike other “pagan” societies and cultures, Hindus are still alive and therefore are in a position to seek reclamation. No one can concede such rights on behalf of another and it is downright insensitive to expect people to give up the faith of their ancestors and the places of worship associated with such faith. In the interest of peace and assuming it is a two-way street, why can’t the occupiers/occupants give up such places and rebuild them at a different location? The Supreme Court has surely shown that such a solution is possible because temples are [consecrated] places of worship whereas mosques are [unconsecrated] places of prayer which is a critical theological distinction. Therefore, temples can’t be moved, while others can be.
Q : The SC has asked the Centre’s views on the PoW Act. But for the Gyanvapi case, Amit Shah says the government will state its position when it is asked to. But what do you expect the Centre to do?
A : On issues of civilisational interest, an Indian government should take a clear position instead of prevaricating like the British Indian government. Also, those who took part in the Ramjanmabhoomi movement cannot plausibly distinguish between Ayodhya, Kashi, Mathura or any other similarly placed site. Since the party in opposition in 1991 was vocal in its objections to the PoW Act, it must act on its convictions now that it is in power and has what it takes to undo injustices of history.
Q : So what will happen to those mosques and churches claimed to be built in place of temples. What is the solution and where will it lead to? If one accepts that temples had been destroyed—will that be the end of the story or beginning of a phase?
A : Waqf Boards and Indian Churches are holders of large swathes of prime real estate and we all know how such real estate was “acquired”. The fact is that quite a bit of it was associated with temples especially in the context of the real estate holdings of Waqf Boards. Therefore, legally speaking, affected temple communities have the right to reclaim such lands too. But since they are being magnanimous and are asking for at least their holy sites to be returned, Waqf Boards and Churches can offer the lands they possess for reconstruction of their respective institutions after handing over the occupied sites. But the solution starts with the admission of destruction, repatriation of holy sites and record of such instances in history books so that the next generation learns from history. Negationism cannot pass off as secularism. After all, isn’t that the reason why history is taught and our textbooks contain references to caste-based discrimination? So why should the logic be any different in this case? If societal reparation is the basis for birth-based reservations, surely reclamation of holy sites is the logical sequitur to the admission of their destruction.
Q : When you say that they should admit there was destruction, who do you refer to? The Waqf Board?
A : I am referring to those who are currently in control of the occupied sites whoever they may be or whatever their affiliation or religious beliefs may be.
Q : Does the Supreme Court have the bandwidth to handle such cases and what if the floodgates are opened after the PoW Act is struck down?
A : Honestly, it is precisely such issues of civilisation import that the highest constitutional court of the country must be dealing with instead of being reduced to a court of appeals for every commercial matter. It is only in this country that the Supreme Court is being treated as a court of appeal. As I said, until the Government and the legislature come out with a streamlined institutional mechanism to deal with such issues, people have and must have the right to approach courts, including the Supreme Court. Since the Supreme Court is otherwise comfortable entertaining numerous PILs on a daily basis, this is an issue that is certainly worthy of its attention.
Q : But if this continues, one section might feel that they are not acceptable in this country or their religion is being targeted. It will bring discord in the community. Where will it end?
A : There is no cure for victim complex that can come from the outside; it has to come from within. This applies as much to individuals as it applies to groups. Anyone and everyone can feel targeted when the mirror is held to them. Therefore, it is best to let facts/evidence speak for themselves instead of letting perpetually hurt and outraged sentiments guide the course of the discourse. Those who wish to draw the right lessons from historical introspection will benefit from it, and those who don’t are answerable to time. Time is the master accountant.
Q : So you want the Places of Worship Act to be struck down?
A : Of course. The legislation should not have been passed in the first place. – Financial Express, 19 April 2021
› Saurabh Sharma is a news writer and copy editor for the Financial Express.
› J. Sai Deepak is an engineer-turned-litigator practising as an arguing counsel before the High Court of Delhi and the Supreme Court of India.