Sambhal Case Reminder That Courts Must Enforce Places Of Worship Act In Letter & Spirit To Preserve Social Fabric

It was hoped that the Ayodhya-Babri Masjid judgment, despite its legal flaws and shoddy reasoning, would put a closure to the mandir-masjid disputes once and for all. Perhaps this hope also led the Supreme Court to allow the Ram Mandir construction, despite finding that there was no conclusive evidence of any pre-existing temple beneath the Babri Masjid and declaring that the installation of idols inside the mosque in 1949 and the destruction of the mosque in 1992 were illegal. Probably, the Court intended this as a "one-time measure" because it categorically stated that historical wrongs by medieval rulers cannot be corrected by the present-day legal regime. More importantly, the 5-judge bench also upheld the Constitutional validity of the Places Of Worship (Special Provisions) Act, 1991(PoW Act) as it was the fulfilment of the State's "constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution". The Court observed that the PoW Act reflected the message that "history and its wrongs shall not be used as instruments to oppress the present and the future."

However, such hopes were soon dashed. Within the next two years, fresh suits were filed claiming rights over the Shahi Idgah Mosque at Mathura and the Gyanvapi Mosque at Varanasi. Recently, a suit was filed against the Shahi Jama Masjid at Sambhal (UP), in which the trial court hastily issued an ex-parte order for the survey of the mosque by an Advocate Commission. Unfortunately, the Commission survey triggered violence on November 24 claiming the lives of four persons.

The very objective of the Places of Worship Act was to prevent the kind of flare-ups which happened in Sambhal. The question one should ask is why are the Courts allowing such disputes to fester despite the clear bar under the PoW Act.

The PoW Act seeks to preserve the status quo with respect to the religious character of a place of worship as it stood on the date of Independence. If the place of worship is an ancient or a historical monument covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958(AMASR Act), then the PoW Act is not applicable to it. However, Section 16 of the AMASR Act provides that a protected monument, which is a place of worship, canot be used for any purpose inconsistent with its character. Thus, if a protected monument is a mosque, then it cannot be used as a temple. The Sambhal mosque, the epicentre of the latest controversy, is reportedly notified as a “protected monument” under the Ancient Monuments Preservation Act of 1904 (replaced by AMASR Act) and recognized by the Archaeological Survey of India (ASI) as a “Monument of National Importance”.

Arguments used to undermine the PoW Act

Over time, certain ingenious arguments have been developed to circumvent the PoW Act. During the hearing of the Gyanvapi case in the Supreme Court in May 2022, Justice DY Chandrachud (as he was then) orally commented that the PoW Act does not bar the ascertainment of the religious character of a structure as on August 15, 1947. With this observation, the bench led by Justice Chandrachud refused to halt the suit and asked the Mosque Committee to raise its objections to the suit's maintainability before the trial court. Thus, the opportunity to douse the fire at the earliest opportunity was squandered.

The oral remark of Justice Chandrachud had a wide ramification and the same reasoning was ultimately adopted by the trial court and later by the Allahabad High Court to hold that the suits were not barred by the PoW Act. The High Court observed that the "religious character" was in dispute and hence it had to be determined whether the structure was a mosque or a temple as on August 15, 1947. Similar reasoning was adopted by the High Court to uphold the maintainability of the suits in Mathura in the Krishna Janambhoomi-Shahi Idgah case.

This interpretation is a clear violence to the letter and spirit of the PoW Act. If the conversion of a religious place is barred under the PoW Act, then it logically follows that the determination of its religious character as on the date of independence is also barred. If you cannot convert a religious place, what is the purpose of a declaration that its religious character is something else? Such a declaration essentially amounts to a de facto conversion of the religious place, indirectly doing something directly prohibited by the Act. Moreover, such an interpretation opens the doors for mischief. Anyone can foment trouble by raising a dispute over a religious place and can keep the communal pot boiling by arguing that the religious character of 1947 has to be determined. This is apart from the practical difficulties which the present day Courts would encounter in determining the religious character 75 years ago.

Given that religion is a volatile and deeply sensitive topic in our country, the Courts must exercise caution and remain mindful of the real-world consequences of entertaining arguments which, though appearing attractive, have the effect of undermining the objective and purpose of the PoW Act.This is not an ordinary civil or commercial litigation where the Courts can indulge the interpretative skills and semantic constructions of the lawyers to explore different outcomes. The lives of ordinary people and the communal fabric of the nation are at stake. An overzealous or unmindful court order could unwittingly light the fire on a communal powderkeg, as it happened in the Sambhal case.

In this connection, a mention needs to be made about an order passed by a Civil Court in Delhi in December 2021 rejecting at the threshold a plaint which sought restoration of alleged temples at the Qutub Minar complex. The Court said that every endeavour must be made to enforce the objective of the Places of Worship Act 1991, which is to maintain the secular character of the country. Wrongs of the past cannot be the basis for disturbing the peace of our present and future, the judge observed in the laudable order. These are the kinds of disputes which ought to be nipped in the bud.

Ironically, the Supreme Court, despite upholding the PoW Act, subsequently entertained fresh writ petitions which challenged the constitutionality of the PoW Act. Interestingly, the Union of India is yet to make its stand clear on the issue, whether it is supporting or opposing the legislation.

The Sambhal tragedy should serve as a wake-up call for the judiciary. The Supreme Court ought to give a conclusive pronouncement that the PoW Act cannot be circumvented under the guise of determining religious character. An authoritative clarification from the Court that the religious character of a place is what it looks like at first glance to an ordinary prudent person would go a long way in putting several controversies to rest. It may also consider passing an extraordinary order invoking its special powers under Article 142 of the Constitution that no suit disputing the religious character of a place can be entertained without first obtaining the leave of the Supreme Court. Because communal harmony is too precious a value to be left to the indiscretion or error in judgment of a junior division judge.

The horrors of the Partition led our leaders to conceive the ideal of 'unity in diversity' to counter the ill effects of the 'divide and rule' politics pursued by the colonisers. The PoW Act reflects the ethos of 'unity in diversity' and should not be overrun by the 'divide and rule' politics of the present day.

In conclusion, it would be apt to quote a meaningful passage from the Supreme Court order dismissing a plea to rename places :

"The present and future of a country cannot remain a prisoner of the past. The governance of Bharat must conform to Rule of law, secularism, constitutionalism of which Article 14 stands out as the guarantee of both equality and fairness in the State's action. It is important that the country must move forward... The history of any nation cannot haunt the future generations of a nation to the point that succeeding generations become prisoners of the past... We must constantly remind ourselves that courts of law, as indeed every part of the 'State', must be guided by the sublime realisation, that Bharat is a secular nation committed to securing fundamental rights to all sections as contemplated in the Constitution."

[The author is the Managing Editor of LiveLaw. He can be reached at manu@livelaw.in.]