It is unfortunate that judicial misdirection is stirring up the retaliatory instincts of people fed on the falsehoods of manufactured history
Normally, digging at historic sites is done by an archaeologist and historians in search of a lost civilization or an ancient city or some signs of mythological events. But nowhere in the world, in the modern age, is an excavation done underneath a place of worship of one religion to find the remains of a place of worship of another religion. While digging in search of historical facts is a secular act, and is done using internationally recognized scientific methods, digging to establish the presence of a place of worship of one religion in a place of worship of another religion is, clearly, a non-secular act. Therefore, it is absolutely puzzling why the former Chief Justice of India (CJI), D.Y. Chandrachud found nothing objectionable or illegal in a survey in a place of worship of a particular religion by another religious group. In his oral observation, the former CJI, said, in 2022 (he was the CJI then), “a survey may not necessarily fall foul of the Places of Worship Act.” He made this tricky observation in the Gyanvapi mosque case.
Clarity in the Act, yet challenged
The Places of Worship (Special Provisions) Act was enacted by Parliament in 1991 in the background of a strident movement by Ram Janmabhoomi supporters which heightened communal tensions in Ayodhya and many other parts of north India. The government of the day apprehended the imminent outbreak of violence in different parts of the country due to the raising of claims over the places of worship of a particular minority community. This Act bars the conversion of places of worship of any religious community into a place of worship of a different religious community. It declares that the religious character of a place of worship existing on the 15th day of August 1947, shall continue to be the same as it existed on that day.
The Act further provides that any suit and appeal seeking to convert the religious character of a place of worship existing on 15th August, 1947 pending before any court or tribunal shall abate on the commencement of the Act. It also states that no suit or appeal relating to this matter shall lie in any court after the commencement of the Act, and any suit alleging that the religious character of a place of worship has been converted after 15th August 1947 will be determined in terms of this Act.
But the constitutionality of this Act is under challenge in the Supreme Court of India. A petition was filed in 2020 challenging the constitutional validity of the Act on the grounds that the date of August 15, 1947 was fixed arbitrarily and that this Act takes away judicial review.
The contention that the date of August 15, 1947 was arbitrarily fixed in the Act to prevent the conversion of a place of worship is a specious one. This is the day when the transfer of power from the British government to the Indian government took place. Naturally, this was the earliest date the government could think of for the purpose of this Act. In any case, the Government of India could not have chosen April 21, 1526 when Babur defeated Ibrahim Lodhi in the battle of Panipat and captured Delhi and Agra and laid the foundation of the Mughal empire. Nor could it have chosen, arbitrarily, a later date and kept the field open for a set of religious fanatics to make reckless claims on the places of worship of another religion. Therefore, by all accounts, the date chosen by Parliament in this enactment was the most reasonable one.
The second ground cited in the petition is that the Act takes away judicial review which is a part of the basic structure of the Constitution of India and any enactment which alters it is unconstitutional. This contention, needless to say, is without any merit. The Act declares that from the commencement of the Act, all pending suits, appeal or proceedings seeking to convert a place of worship of one religion existing as on August 15, 1947 into that of another religion or altering the religious character of a place of worship shall abate. It is the legislative policy of the government to declare through a law that certain types of suits shall abate under certain circumstances. It is not the same as stating that “no court shall have any jurisdiction in respect of any suit arising from the place of worship of any religion”. The latter legislative assertion can be interpreted as an exclusion of judicial review which would, no doubt, be unconstitutional. But that is not the case here.
On the lower courts
Subsequent to the above quoted observation of the former CJI, lower courts in the State of Uttar Pradesh are ordering surveys in mosques to determine their religious character with great alacrity. It has led to violence in Sambhal in Uttar Pradesh in which some lives were lost. The lower courts do not seem to have bothered to check whether it was an order of the Supreme Court or a mere observation of the CJI during the hearing. The fact is that such observations from the Bench have no significance as those are not a part of any judgment of the Court.
Besides, it is a matter of common logic that when the law has barred any kind of conversion of the religious character of a place of worship as it existed on August 15, 1947, then what is the relevance of ordering or carrying out a survey to determine its character? Legally, its character is what existed on the date as above. So, where is the need for a fresh survey?
A close reading of the provisions of the Act would reveal that what has been prohibited is not merely the act of conversion but also fresh surveys to establish the religious character of a place of worship. As that stands settled, any attempt to resurrect the dispute and get an order from the court would be clearly in violation of the Act.
The Places of Worship Act 1991 has been hailed as a law which protects secularism in the Ayodhya judgment of the Supreme Court. Wisely, the Court has now put a blanket ban on all litigations relating to the places of worship till it finally determines the issue of the constitutionality of the Act.
Protection of a fundamental right
Quite apart from the issue of constitutionality or otherwise of the Places of Worship Act, a religious denomination has the fundamental right, under Article 26, to manage its own affairs in matters of religion. Worshipping in a mosque or a church is a matter of religion and any kind of interference by any outsider in that place of worship can be treated as a violation of the fundamental right of that religious denomination. The court, while ordering a survey of such a place of worship, is in fact committing a violation of Article 26 of the Constitution. The object of this Article is to protect the right conferred on a religious denomination. So, even if the Act was not in existence, a survey or excavation in a place of worship being used by a religious denomination for the purpose of finding out the religious character of that place would be a violation of Article 26.
It is possible that beneath some mosques lie remains of temples. And beneath the remains of temples there may be the remains of Buddha or Jain viharas. History has sequestered in the womb of earth these tell-tale remains for an archaeologist and a historian to chronicle the history of this nation, and not for bigots to kindle revanchism and poison the minds of generations of unwary people. It is a great pity that judicial misdirection is refiring the retaliatory instincts of people fed on the falsehoods of manufactured history.
(P.D.T. Achary is a former Secretary General of the Lok Sabha)
