Is The Places of Worship Act, 1991 constitutional?

Surprisingly, the BJP, which had staunchly opposed the Act when it was being passed in Parliament, has not yet repealed it, despite being in power for more than nine years.
Kashi Viswanath Temple and Gyanvapi Mosque
Kashi Viswanath Temple and Gyanvapi Mosque

The general elections held in June 1991, around the time when the Ram Janmabhoomi movement was at its peak, saw no political party win a clear majority. The Indian National Congress (INC), supported by other smaller parties, formed a minority government under PV Narasimha Rao as the new Prime Minister. The Bharatiya Janata Party (BJP), for the first time, progressed to become the main opposition party in the Lok Sabha.

On July 12, 1991, within a month of declaration of the election results, a resolution titled ‘Steps for maintaining Status quo of religious shrines and places of worship as they existed on 15th August, 1947’ was moved by Zainal Abedin [Communist Party of India (Marxist)] in the Lok Sabha. While the resolution was still being debated, the Places of Worship (Special Provisions) Bill was introduced in the Lok Sabha on August 23, 1991 by then Home Minister SB Chavan of INC. It was described as “a Bill 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”.

The speeches of most parliamentarians who were in support of the Bill were centred around controlling the expansion of the BJP through the Bill. Members of Parliament who opposed the Bill, mostly members of the BJP, said that the law is being brought to appease a particular minority community.

The Bill received the assent of the majority in the Lok Sabha on September 10, 1991. Subsequently, it was adopted by the Rajya Sabha on September 12, 1991, and received the President’s assent on September 18, 1991.

What does the Act say?

The Places of Worship (Special Provisions) Act, 1991 is a short legislation which consists of only seven Sections. The opening clause declares the objective of the legislation to prohibit conversion of any place of worship and to maintain the religious character of any place of worship as it existed on August 15, 1947.

Section 3 of the Act declares that no person shall convert any place of worship of any religious denomination into one of a different religious denomination or sect. Section 4(1) provides that the religious character of a place of worship shall continue to be the same as it was on August 15, 1947. Section 4(2) provides that all pending suits, appeals or other proceedings regarding conversion of the character of a place of worship existing on August 15, 1947, will stand abated when the Act commences and no fresh proceedings can be filed. The proviso to Section 4(2) makes an exception to the effect that legal proceedings can be initiated with respect to the conversion of the religious character of any place of worship if the change of status took place after August 15, 1947.

Section 4 (3)(a) further exempts from the operation of the Act, any place of worship which is an ancient and historical monument or an archeological site or remains covered by Ancient Monuments and Archeological Sites and Remains Act, 1958. Section 5 of the Act particularly exempts the Ram Janmabhoomi from its application.

Challenge to Constitutionality of the Act

The blanket bar on legal proceedings imposed by the Act – irrespective of the history of any mosque, temple, gurudwara, church or any other place of public religious worship - has given rise to a gamut of grievances from persons whose places of worship were forcibly demolished or occupied before August 15, 1947.

Numerous petitions have been filed before the Supreme Court of India, claiming that the Act is violative of Articles 14, 15, 21, 25, 26, 29 of the Constitution of India. The petitioners in these cases include Anil Kabotra (a retired army officer), Ashwini Upadhyay (advocate), Swami Jeetendranand Saraswati (a religious leader), Devkinandan Thakurji (a religious leader), Kumari Krishna Priya (daughter of Kashi Naresh Vibhuti Narayan Singh and the current titular head of the erstwhile Royal Family of Kashi) and Subramanian Swamy (former Rajya Sabha MP), among others.

Broadly, the various grounds of challenge to the Act raised in the petitions are summarized below:

I. The Act creates a statutory bar against judicial remedy

One of the primary grounds of challenge to the constitutionality of the Act is that it legitimises historical forcible occupation of places of worship. The Act forces the indigenous communities of Bharat to live with the atrocities committed against them, by preserving the historical wrongs done by the Mughals and the Britishers, among other invaders. It prohibits people from approaching courts of law to reclaim their places of worship, which were encroached upon forcefully, and thereby, deprives citizens from the fundamental right of access to justice.

Parliament ought not to have decided the religious character of all places of worship by passing a blanket law, irrespective of the facts of each place. The Act has attached a false religious character to a number of places by simply putting a bar on the judicial remedy of any person to claim otherwise.

II. Abatement of pending proceedings

The constitutionality of Section 4(2), which declares all pending legal proceedings pertaining to conversion of the religious character of a place of worship existing on August 15, 1947, to stand abated with effect from 11th July, 1991, has also been challenged. The petitioners’ grievance is that not only does the Act obstruct aggrieved persons/communities from taking recourse to legal remedies, it goes a step ahead by taking away pre-existing rights/remedies of persons, who had already taken legal recourse to the injustice caused to them. Thus, the Act creates rights and equities in favour of possession obtained by illegal encroachment and effectively dismisses all petitions which were still awaiting application of judicial mind.

III. Arbitrary and irrational cut-off date

The petitioners have also challenged the Act on the ground that the cut-off date of August 15, 1947 is arbitrary and irrational. Considering the date of India’s independence from the British Crown, the Act gives finality to status quo determined by a colonial power. The petitioners have averred that destruction/occupation of their religious places of worship has taken place over a period of centuries, which period has no nexus with the cut-off date of August 15, 1947. Moreover, there is no rationale to consider the date of independence from an external colonizer, to be the cut-off date to achieve the objective of prevention of communal disharmony.

A reading of the parliamentary debates around the Act reveals that there is no rational justification to explain the date of August 15, 1947. For instance, in his Lok Sabha speech on September 9, 1991, Ram Vilas Paswan (Janata Dal) stated in support of the cut-off date, that “The country gained independence on 15th August, 1947. Before that, who were the masters at this country? We don’t want to go into history …”

IV. Discrimination qua exception

Another ground of challenge to the Act arises from Section 5 of the Act, which exempts the Ram Janmabhoomi from its application. The grievance is based on the contention that the law is violative of Article 14, as it put worshippers of one deity (Shri Ram) on a higher footing than other Hindus who worship other deities such as Shri Krishna (at Shri Krishna Janmabhoomi) or Lord Shiva (at Kashi Vishwanath, Varanasi). Parliament ought to have treated claimants of other occupied religious sites at par with those of the Ram Janmabhoomi, so that they too had the opportunity to present evidence before a court of law to make good their case for restoration of their places of worship.

Conclusion and author’s views

An understanding of the Act, de hors a context of the political environment at the time it was passed, would be incomplete. The parliamentary debates show that any references made to history to support the passing of the Act were merely rhetorical, without any evidentiary support from credible sources. Some of the legislators supporting the Act raised doubts about the actual birthplace of Shri Ram and about the existence of a temple at the site of Babri Masjid, by completely turning a blind eye to historical facts proven through years of research.

In his speech in the Lok Sabha on September 10, 1991, Mohammad Yunus Saleem (Janata Dal) went to the extent of saying that Aurangzeb demolished the Kashi Vishwanath temple to avenge the dishonour of a Hindu woman, a claim which was unfounded and preposterous. Such an unresearched approach of the lawmakers in enacting a legislation, without understanding and holistically addressing the complexities of the nation’s history, was erroneous and reckless. A study ought to have been undertaken by the parliamentarians, especially with the vast amount of existing research, to identify the number of occupied/converted places of worship.

Moreover, by barring any and all suits, the Act stops at the very initiation, any effort to ascertain the true religious character of a place of worship through constitutionally valid means. This is in complete contrast to the very essence of Truth and Reconciliation Commissions set up all around the world to prevent communal and racial disharmony in countries which have suffered historical wrongs at the hands of colonizers and invaders. In all such Commissions, the endeavour has been to first bring out the truth, and then, to reconcile the victim and the perpetrator. However, the Act attempts to jump to the so-called reconciliation efforts, by by-passing the essential step of revelation of truth, and violates the fundamental right of the indigenous people of this country to reclaim their places of worship.

It is also pertinent to note that Jamiat Ulama-I-Hind’s submission that the Supreme Court’s judgment in M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors (commonly known as the Ayodhya dispute verdict) has already dealt with the issue of constitutionality of the Act, does not hold any strength since the Court’s observations on the Act were obiter. The constitutionality of the Act was not decided in that case, since it was not even an issue in the first place.

The potential of communal disharmony ought not to be considered a constitutionally valid argument to uphold an otherwise unconstitutional Act. Even otherwise, the fact that there was no disturbance to communal harmony after the Ayodhya dispute verdict suggests that there would be no communal disharmony if the true religious character of a place of worship is determined by a proper institution or a court of law through constitutional means and evidentiary procedures.

Surprisingly, the BJP, which had staunchly opposed the Act when it was being passed in Parliament, has not yet repealed it, despite being in power for more than nine years.

Luv Virmani is an advocate practicing in the High Court of Delhi.

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