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(Tarun Mehra and Savyasachi Narayanan are third year students from Campus Law Centre, University of Delhi) The Indian subcontinent has a history which is replete with instances of dynasties conquering the lands and possessions of those before them, ransacking livelihood, usurping religious institutions, and cultivating communal intolerance. In an attempt to resolve these medieval yet unsettled controversies, the Parliament prudently enacted The Places of Worship (Special Provisions) Act, 1991. In order to curb the potential conflicts and to maintain a sense of communal harmony, the P.V. Narasimha Rao government enacted this Act in 1991, at a time when the Ram Janmabhoomi- Babri Masjid conflict was at its zenith and about a year before the demolition of Babri Masjid. The statute which has been the epicenter of multiple debates has been brought into limelight again recently after a petition was filed by a Hindu body namely, Vishwa Bhadra Pujari Purohit Mahasangh among others in the Apex Court challenging Section 4 of the Act propounded to be the heart and soul of the impugned statute. The question which has been put forward is, whether the concerned legislation follows the ideals of secularism, or is it just another politically motivated propaganda meant to do more harm than good. Legal Background
The main aim of the Act is to freeze the status of any place of worship as it was on the day of Independence and intended to preempt any future claims by any group about the historical status of any place of worship or efforts towards reclaiming the land on which they stood. Section 4 provides to freeze the status of a place of worship as it was on 15th day of August 1947. After the commencement of this enactment, any matter relating to the conversion of the religious character of any place of worship existing on 15th August 1947 shall be brought to an end before any court. Section 5 provides for the exemption of the Ram JanmaBhoomi- Babri Masjid situated in Ayodhya, Uttar Pradesh under the Act. Section 6 of the Act also provides for penal provision. This act also overrides all other legislation. Intention of the legislature The month of September 1991 can be remembered as one of the most tumultuous periods in the history of this nation. With religious insecurities at their highest and a state of vicious intolerance amongst communities, the legislature felt a dire need to step in. As explained by the then Union Home Affairs Minister, Mr. S.B Chavan in the Lok Sabha, the Places of Worship Special Provision Bill (hereinafter referred to as “Bill”) was intended to act as a measure to uplift the glorious traditions of love, peace and harmony setting about healing the wounds of history. He further stated that the bill endeavoured to restore the fundamental concepts of communal amity and goodwill in a time of great peril. As explained by Mr. Ram Vilas Paswan, a member of Lok Sabha, August 15, 1947 is a date which is momentous in the history of the country and a day which entrusted the basic rights to the citizens of this country, hence chosen as the earmarked date to affix the religious character of an institution. Lauded by the Congress and its allies, the Bill faced a hostile ride by the opposition for its exclusion of the Ram Janmabhoomi and its ignorant approach towards historical invasions and the restoration of the original character of religious institutions. The Bill although found its firm voice of favour primarily for its stand against the demands of communal fanaticism and religious fundamentalists meddling with the communal equilibrium of the society. As far as the exclusion of the Ayodhya dispute was concerned, as explained by the then legislators of the lower house, an opportunity was created to solve the issue with mutual discussion or by a judicial verdict for a conflict which was lis pendens. The Ayodhya Verdict As stated by the Supreme Court in M Siddiq (D) Thr Lrs v. Mahant Suresh Das &Ors, the two main objectives of the Act are, firstly, to prohibit the conversion of any place of worship and to prevent the alteration of the religious character of a place of worship; and secondly, to impose a positive obligation in order to preserve the religious character of any place of worship as it existed on the date of independence. The Supreme Court elaborately conversed on the ramifications of the Act and has affirmed that the Act protects and safeguards the fundamental values of the Constitution and is deeply associated with the obligations of a secular state. The apex court in its judgement stated, “Historical wrongs cannot be remedied by the people taking the law in their own hands.” The Court elucidated that the Parliament had mandated the disqualification of historical wrongs as instruments to suppress the present and the future. To further quote the then Union Home Minister, “the law was set up not to create new disputes and to rake up old controversies which had long been forgotten by the people … but facilitate the object sought to be achieved.” The Act imposes a non-derogable obligation under the Constitution to enforce its commitment to secularism as concluded by the Apex Court. As the Court vehemently pointed out in its judgement, “the adoption of the Constitution marks a watershed moment where we, the people of India, departed from the determination of rights and liabilities on the basis of our ideology, our religion, the colour of skin, or the century when our ancestors arrived at these lands and submitted to the rule of law.” The judgement tries to instill constitutional ideologies and morality over the arguments manifesting from religious sentimentality along the lines of the provisions enacted in the Act. Current status of Kashi Vishwanath-Gyanvapi Mosque & Krishna Janmabhoomi- Shahi Idgah The Act which protects the character of religious institutions as ascertained on 15 August 1947 also brings into its ambit the disputed structures in Mathura (Krishna Janmabhoomi and Shahi Idghah Mosque) and Varanasi (Kashi Vishwanath Temple and Gyanvapi Mosque). Both the mosques are believed to have been built at the instruction of Mughal emperors after destroying and modifying the pre-existing Hindu structures. The Gyanvapi Mosque shares a boundary wall with the Kashi Vishwanath temple in Varanasi. Due to an unceasing atmosphere of tensions brewing among the locals, the structures are guarded by paramilitary forces. Similarly, the Shahi Idgah mosque in Mathura, a source of communal tension, stands adjacent to the Krishna Janmabhoomi temple. The Allahabad High Court had taken up the Varanasi dispute in an appeal, but the pith of the matter is yet to be forayed into. Whereas in the Mathura dispute, in 1935 judgement, the Allahabad HC had allotted the legal right of the land to the Hindu King of Varanasi and the ownership passed on to Shri KrishnaJanmabhoomi Trust controlled by the Vishwa Hindu Parishad. In the year 1968, an agreement was reached between Shri Krishna Janmabhoomi Trust and ShahiIdgah committee which handed over the management rights of the mosque to the latter. The way forward As far as the Ayodhya verdict goes, the Constitution Bench clearly laid down that determination of rights and liabilities of persons cannot be based on their religious or cultural identity. The verdict is based on evidence of competing claims of possession, and also does not act as a precedent for mitigating alleged acts of destruction of historical structures of faith by ancient conquerors. In a country where religious liberty rules the roost, the future of the operation of this Act can go two ways. The writ petition filed challenging the constitutional validity of Section 4 of the Act questions the powers of the Parliament in enacting a legislation which arguably disallows the Hindus to profess their own religion, a right bestowed upon them by Article 25, hence violating the provisions mentioned in the Article 13(2) which prohibits the enactment of any law which takes away or abridges the right conferred by Part III of the Constitution. It quotes the sage Katyayana to argue that “temple property is never lost even if it is enjoyed by strangers for hundreds of years”, the petitioners further contended that the rights of their Deity remain outside the vicissitudes of human frailty ensuring its perpetual sustenance. Additionally, the petitioners have pointed out that “Public Order”, mentioned in the Act, is a State Subject falling in List II Item 1 of the Seventh Schedule of the Constitution and the Parliament has no legislative competence to legislate on the same. The petition also questions the singular exclusion of the Ayodhya dispute from the ambit of the Act. It argues that the removal of similarly situated and conflicted shrines of Hindus from judicial scrutiny violates Article 14. The extensive arguments of the petitioners basically convey that the Act in the garb of principle of Secular State, lends to atrocious heights of injustice which will be faced by the citizens professing the Hindu religion.The amendment of this Act by the legislature as pleaded in a petition filed can open up the floodgates for numerous other petitions scrutinizing the rights of possession of multiple historically wronged religious institutions. On the other hand, the propagation of the Act will maintain the current status quo and hopefully keep us away from a scenario which mirrors the 1991 conflicts. Concluding remarks The authors hope that the Courts while delving into the issues and the questions pertaining to the Act in question, will keep in view the basic structure of the constitution and ensure the preservation of beliefs that maintain peace, love & harmony and prevent any further communal conflicts by ensuring that suo moto cognizance is taken by Courts in cases where there is a high possibility of communal unrest and turmoil. In our democratic scheme of things, India being a State with no official religion and with an aim to provide equal rights to all the different religious sects, it is time to create a healthy channel in resolving such disputes through mutual discourse and constructive conversations.
1 Comment
Shivam Gupta
18/8/2020 09:01:47 pm
Good job.
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