By Dr Swati Jindal Garg
Mahatma Gandhi had rightly said: “I do not expect India of my dreams to develop one religion, i.e., to be wholly Hindu or wholly Christian or wholly Mussalman, but I want it to be wholly tolerant, with its religions working side by side with one another.”
India, the biggest democracy in the world, takes pride in the fact that it is a secular country. The word secularism however, was never clearly defined by either our constitutional experts or political ideology as there are several problems in defining secularism in the Indian context. Both during colonial and post-colonial periods, Indian society has been a traditional society dominated by various customs and traditions with deep religious orientation. For the liberal and progressive intellectuals, on the other hand, secularism meant total exclusion of religion from the political arena which may be a near impossible task taking into account the fact that most of the Indian political parties have aligned themselves with one colour or the other!
Time and again, the secularism debate has risen its head in the Indian context and matters have been taken to court one after the other. In another such case, the Supreme Court that had constituted a special bench to hear a clutch of pending petitions challenging the constitutional validity of the Places of Worship (Special Provisions) Act, 1991 has finally put a freeze over the filing of any new petitions that challenge the veracity of the places of worship. The special bench comprises Chief Justice of India Sanjiv Khanna and Justices Sanjay Kumar and KV Viswanathan. The petitions filed before the apex court are all, in one way or the other, challenging the Act, which left only the Ayodhya issue to be decided by the courts and froze the status of any place of worship as was on the day of India’s independence. While the issue is still to be decided and the Act is under challenge before the Court, suits are also being filed in different courts for surveying mosques believed to have been built on sites where temples once existed.
In fact, such was the furore created that the former Supreme Court judge Rohinton Nariman expressed concern over the suits seeking surveys of mosques and dargahs while delivering the inaugural lecture of the Justice AM Ahmadi Foundation. “We find today, like hydra heads popping up all over the country, there is suit after suit filed all over the place… Now not only concerning mosques but also dargahs. All this can lead to communal tension and disharmony, contrary to what is envisaged in both our Constitution and the Places of Worship Act,” he said.
Referring to what was said of the Act in the 2019 verdict on the Ayodhya matter by a five-judge Constitution bench, Justice Nariman also said: “This very Constitution Bench spends five pages on it and says that in secularism, which is a part of the Basic Structure, you cannot look backwards, you have to look forward… Every religious place of worship is frozen to 15th August 1947. Now anybody who tries to change this, those suits will stand dismissed.”
The Places of Worship (Special Provisions) Act, 1991, the constitutionality of which is currently under challenge before the Supreme Court, mandates that the nature of all places of worship, except the one in Ayodhya that was then under litigation, shall be maintained as it was on August 15, 1947. The Act was brought in by the PV Narasimha Rao-led Congress government during the time when the “Ram temple movement” was at its height and was also meant to apply to the disputed Kashi Vishwanath temple-Gyanvapi mosque complex in Varanasi along with the Krishna Janmabhoomi temple-Shahi Idgah mosque complex situated in Mathura.
The Act basically declares that the character of a place of worship as of August 15, 1947, shall be maintained and that no suit or proceeding shall lie in any court in respect of any dispute against the encroachment of any religious properties at any point in time before this date. Key provisions of the Act under scrutiny include Sections 2, 3 and 4, which bar conversion of religious sites and lawsuits regarding their character as of 1947. Section 3 of the Act bars the conversion of places of worship. It states: “No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.”
Section 4 further bars filing of any suit or initiating any other legal proceeding for a conversion of the religious character of any place of worship, as existing on August 15, 1947. It further goes on to say that any such pending proceeding shall stand abated and that any proceeding filed on the grounds that conversion of religious place has taken place after August 15, 1947, and before September 18, 1991 (when the Act came into existence), shall be disposed of to maintain the status as it existed on August 15, 1947.
Most of the petitions filed before the courts, challenge the Act on the grounds that it bars the remedy of judicial review as was laid down by the Supreme Court, in its 1980 judgment in Minerva Mills Ltd. & Ors vs Union Of India & Ors, wherein the Court had held that the principle of judicial review was a basic feature of the Constitution and, therefore, outside the legislative competence of Parliament. “The power of judicial review is an integral part of our constitutional system and without it there will be no government of laws, and the rule of law would become a teasing illusion and a promise of unreality. If there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably a part of the basic structure of the Constitution,” the Court observed.
The petitioners also contend that the Act violates principles of secularism, the rule of law, and cultural heritage, deeming it unconstitutional for closing courts to disputes over places of worship appropriated by invaders and worse still, legitimizing historical actions by rulers such as Babar, Humayun, and Tughlaq.
The petition under discussion was filed way back in June 2020 by a Lucknow-based trust, Vishwa Bhadra Pujari Purohit Mahasangh, that had moved the Supreme Court, challenging the Act. Later, the Jamiat Ulama-i-Hind, too, reached the Court, seeking permission to be made a party in the matter claiming that “even issuance of notice in the… matter will create fear in the minds of the Muslim community with regard to their places of worship, especially in the aftermath of the Ayodhya dispute and will destroy the secular fabric of the nation”.
Following this, many more petitions were filed in this matter, including one that was filed by a representative of the erstwhile royal family of Kashi that said: “For a legislation that shuts the doors of justice to affected communities and parties, it was “debated” only on three dates i.e., 23.08.1991, 09.09.1991 and 10.09.1991, and the Bill was passed on the last of the said dates”. “The debate of 23.08.1991 clearly captures the fact that the period of seven days’ notice was not afforded to the members of the Lok Sabha before the Places of Worship (Special Provisions) Bill dated 22.08.1991 was introduced,” the petition further stated.
Currently, approximately 18 suits concerning 10 mosques or shrines are pending across the country. The centre has been granted time to submit its affidavit addressing the provisions of the Act, which, petitioners claim is unconstitutional and denies the rights of Hindus, Jains, Buddhists, and Sikhs to restore their places of worship destroyed by historical invaders. They also contend that the outcome of the case could impact the ongoing lawsuits filed by Hindu plaintiffs seeking rights to properties containing Muslim mosques, based on claims that these mosques were constructed over ancient temples.
Stating that it did not want to multiply the number of writ petitions on the same issue, the Court had finally issued directions and asked the parties to file intervention applications instead following which the management committee of the Gyanvapi mosque in Varanasi too has filed an intervention application, saying the “consequences” of allowing such pleas “are bound to be drastic”. The mosque committee also pointed to the violence in Sambhal, Uttar Praesh that occurred due to the permission granted by a court to conduct the survey of the Shahi Jama Masjid by allowing an application for the appointment of a survey commissioner on the very day the suit was presented-
“The incident led to widespread violence and has claimed, as per reports, at least six citizens’ lives. The declaration sought by the petitioner would mean such disputes raising their head in every nook and corner of the country and will ultimately obliterate the rule of law and communal harmony.”
Despite objections raised by many parties, notice on the clutch of petitions was issued on March 12, 2021, and the Court sought the centre’s response. Later, the hearing was adjourned multiple times following requests from the centre for more time to respond. The government is yet to file a reply.
The Supreme Court has now, reportedly, passed an order stating that no further suits can be registered against places of worship. Those lawsuits which have already been registered will, however, continue. The top court has also barred all courts nationwide from issuing any effective interim or final orders, including directives for surveys, in ongoing cases involving existing religious structures.
What comes out of these petitions, remains to be seen. What is beyond doubt, though, is that religion continues to be the substance that glues together as well as divides this nation’s communities.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi
The post appeared first on .
Mahatma Gandhi had rightly said: “I do not expect India of my dreams to develop one religion, i.e., to be wholly Hindu or wholly Christian or wholly Mussalman, but I want it to be wholly tolerant, with its religions working side by side with one another.”
India, the biggest democracy in the world, takes pride in the fact that it is a secular country. The word secularism however, was never clearly defined by either our constitutional experts or political ideology as there are several problems in defining secularism in the Indian context. Both during colonial and post-colonial periods, Indian society has been a traditional society dominated by various customs and traditions with deep religious orientation. For the liberal and progressive intellectuals, on the other hand, secularism meant total exclusion of religion from the political arena which may be a near impossible task taking into account the fact that most of the Indian political parties have aligned themselves with one colour or the other!
Time and again, the secularism debate has risen its head in the Indian context and matters have been taken to court one after the other. In another such case, the Supreme Court that had constituted a special bench to hear a clutch of pending petitions challenging the constitutional validity of the Places of Worship (Special Provisions) Act, 1991 has finally put a freeze over the filing of any new petitions that challenge the veracity of the places of worship. The special bench comprises Chief Justice of India Sanjiv Khanna and Justices Sanjay Kumar and KV Viswanathan. The petitions filed before the apex court are all, in one way or the other, challenging the Act, which left only the Ayodhya issue to be decided by the courts and froze the status of any place of worship as was on the day of India’s independence. While the issue is still to be decided and the Act is under challenge before the Court, suits are also being filed in different courts for surveying mosques believed to have been built on sites where temples once existed.
In fact, such was the furore created that the former Supreme Court judge Rohinton Nariman expressed concern over the suits seeking surveys of mosques and dargahs while delivering the inaugural lecture of the Justice AM Ahmadi Foundation. “We find today, like hydra heads popping up all over the country, there is suit after suit filed all over the place… Now not only concerning mosques but also dargahs. All this can lead to communal tension and disharmony, contrary to what is envisaged in both our Constitution and the Places of Worship Act,” he said.
Referring to what was said of the Act in the 2019 verdict on the Ayodhya matter by a five-judge Constitution bench, Justice Nariman also said: “This very Constitution Bench spends five pages on it and says that in secularism, which is a part of the Basic Structure, you cannot look backwards, you have to look forward… Every religious place of worship is frozen to 15th August 1947. Now anybody who tries to change this, those suits will stand dismissed.”
The Places of Worship (Special Provisions) Act, 1991, the constitutionality of which is currently under challenge before the Supreme Court, mandates that the nature of all places of worship, except the one in Ayodhya that was then under litigation, shall be maintained as it was on August 15, 1947. The Act was brought in by the PV Narasimha Rao-led Congress government during the time when the “Ram temple movement” was at its height and was also meant to apply to the disputed Kashi Vishwanath temple-Gyanvapi mosque complex in Varanasi along with the Krishna Janmabhoomi temple-Shahi Idgah mosque complex situated in Mathura.
The Act basically declares that the character of a place of worship as of August 15, 1947, shall be maintained and that no suit or proceeding shall lie in any court in respect of any dispute against the encroachment of any religious properties at any point in time before this date. Key provisions of the Act under scrutiny include Sections 2, 3 and 4, which bar conversion of religious sites and lawsuits regarding their character as of 1947. Section 3 of the Act bars the conversion of places of worship. It states: “No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.”
Section 4 further bars filing of any suit or initiating any other legal proceeding for a conversion of the religious character of any place of worship, as existing on August 15, 1947. It further goes on to say that any such pending proceeding shall stand abated and that any proceeding filed on the grounds that conversion of religious place has taken place after August 15, 1947, and before September 18, 1991 (when the Act came into existence), shall be disposed of to maintain the status as it existed on August 15, 1947.
Most of the petitions filed before the courts, challenge the Act on the grounds that it bars the remedy of judicial review as was laid down by the Supreme Court, in its 1980 judgment in Minerva Mills Ltd. & Ors vs Union Of India & Ors, wherein the Court had held that the principle of judicial review was a basic feature of the Constitution and, therefore, outside the legislative competence of Parliament. “The power of judicial review is an integral part of our constitutional system and without it there will be no government of laws, and the rule of law would become a teasing illusion and a promise of unreality. If there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably a part of the basic structure of the Constitution,” the Court observed.
The petitioners also contend that the Act violates principles of secularism, the rule of law, and cultural heritage, deeming it unconstitutional for closing courts to disputes over places of worship appropriated by invaders and worse still, legitimizing historical actions by rulers such as Babar, Humayun, and Tughlaq.
The petition under discussion was filed way back in June 2020 by a Lucknow-based trust, Vishwa Bhadra Pujari Purohit Mahasangh, that had moved the Supreme Court, challenging the Act. Later, the Jamiat Ulama-i-Hind, too, reached the Court, seeking permission to be made a party in the matter claiming that “even issuance of notice in the… matter will create fear in the minds of the Muslim community with regard to their places of worship, especially in the aftermath of the Ayodhya dispute and will destroy the secular fabric of the nation”.
Following this, many more petitions were filed in this matter, including one that was filed by a representative of the erstwhile royal family of Kashi that said: “For a legislation that shuts the doors of justice to affected communities and parties, it was “debated” only on three dates i.e., 23.08.1991, 09.09.1991 and 10.09.1991, and the Bill was passed on the last of the said dates”. “The debate of 23.08.1991 clearly captures the fact that the period of seven days’ notice was not afforded to the members of the Lok Sabha before the Places of Worship (Special Provisions) Bill dated 22.08.1991 was introduced,” the petition further stated.
Currently, approximately 18 suits concerning 10 mosques or shrines are pending across the country. The centre has been granted time to submit its affidavit addressing the provisions of the Act, which, petitioners claim is unconstitutional and denies the rights of Hindus, Jains, Buddhists, and Sikhs to restore their places of worship destroyed by historical invaders. They also contend that the outcome of the case could impact the ongoing lawsuits filed by Hindu plaintiffs seeking rights to properties containing Muslim mosques, based on claims that these mosques were constructed over ancient temples.
Stating that it did not want to multiply the number of writ petitions on the same issue, the Court had finally issued directions and asked the parties to file intervention applications instead following which the management committee of the Gyanvapi mosque in Varanasi too has filed an intervention application, saying the “consequences” of allowing such pleas “are bound to be drastic”. The mosque committee also pointed to the violence in Sambhal, Uttar Praesh that occurred due to the permission granted by a court to conduct the survey of the Shahi Jama Masjid by allowing an application for the appointment of a survey commissioner on the very day the suit was presented-
“The incident led to widespread violence and has claimed, as per reports, at least six citizens’ lives. The declaration sought by the petitioner would mean such disputes raising their head in every nook and corner of the country and will ultimately obliterate the rule of law and communal harmony.”
Despite objections raised by many parties, notice on the clutch of petitions was issued on March 12, 2021, and the Court sought the centre’s response. Later, the hearing was adjourned multiple times following requests from the centre for more time to respond. The government is yet to file a reply.
The Supreme Court has now, reportedly, passed an order stating that no further suits can be registered against places of worship. Those lawsuits which have already been registered will, however, continue. The top court has also barred all courts nationwide from issuing any effective interim or final orders, including directives for surveys, in ongoing cases involving existing religious structures.
What comes out of these petitions, remains to be seen. What is beyond doubt, though, is that religion continues to be the substance that glues together as well as divides this nation’s communities.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi
The post appeared first on .