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Note: This article was originally published on June 4, 2022 and republished on September 12, 2022 after a Varanasi court upheld the maintainability of a suit seeking the right to Hindu worship at the Gyanvapi mosque.
On television debates and elsewhere, it is being said that the Places of Worship Act, 1991 (1991 Act for short) will not apply to the ongoing Gyanvapi mosque cases because of an exception clause in its Section 4. Such a suggestion cannot seriously be made by anyone who has cared to read the 1991 Act, which is all of 8 sections.
Every mosque is a ‘place of worship’ as defined by Section 2(c) of the 1991 Act. Any conversion of any mosque by anyone at all into a place of worship of a different religion is forbidden by Section 3. This prohibition admits of no exception, and its violation is a criminal offence entailing a jail term. The exceptions listed in Section 4, which are discussed later, do not affect Section 3. So, the Act applies to every place of worship.
The status of the Gyanvapi mosque as a Muslim place of worship is a plain fact that has been recognised by courts and not open to question.
Can there be any doubt that a bid to set up Hindu idolatry within the mosque is a bid to change a Muslim place of worship into a Hindu one? Whatever has the effect of changing a mosque into a temple is forbidden conversion – whether it is sought to be done on the basis of the mosque’s history, or in the guise of title suits, or rights of faith, or upon the discovery of an artefact or architectural relic. A suit to enforce what is forbidden by law cannot be maintained. Section 3 alone will suffice for courts to dismiss any suit of that nature.
Section 4: A special provision for places of worship existing at Independence
Parliament was aware of the clamour to resurrect temples destroyed centuries ago by now destroying mosques in their stead. So, it made additional provision to end all possible avenues for agitating real or perceived historical wrongs of that nature.
Keeping in mind places of worship built after destroying structures of an earlier order, Section 4 has been brought into the 1991 Act to freeze at a point in time, the religious character of such sites. Section 4(1) fixes the date of Indian independence, August 15,1947 as that point in time. If a site was a temple, mosque, church, gurudwara or any other place of public worship on August 15,1947, it will remain so, no matter what it had been in the past and what physical traces of that past remain. That is why the 1991 Act affords no scope for an assessment of religious character based on history, remnants, artefacts, or anything else.
General and Special protection in the 1991 Act – Sections 3 and 4
The 1991 Act contains both a general and a special protection. Section 3 is the general provision that protects every place of worship, whatever be its date of construction. Section 4 adds a special provision for places of worship that existed on August 15, 1947.
The rationale is evident. Older places of worship as existed from before independence were more likely to be subjected to claims of historical wrongs. It was not enough to merely forbid their conversion and term it criminal. It was also necessary to block avenues of litigation to obtain what was otherwise forbidden.
The 1991 Act leaves no scope for courts to alter the religious character of the older structures. Closure is ensured in many ways by Section 4 (2).
First, it stipulates against future suits to seek a change in the religious character of places of worship that existed at independence.
Second, it stipulates a summary abatement of pending suits that seek a change in the religious character of places of worship that existed at independence.
Third, it stipulates the restoration of the religious character of a place of worship as it was at the time of independence, if its religious character has been converted afterwards.
Even aside from Section 4, a mosque that existed on August 15, 1947 will have the general protection of Section 3, which will not be lost to it under any circumstance.
Section 4(3)(a) and the exception: The Ancient Monuments Act
It is true that a place of worship covered by the Ancient Monuments and Archaeological Sites Act 1958 or any similar law, would go out of the ken of Sections 4 (1) and (2) of the 1991 Act. This exception in Section 4(3)(a) will not, however, help the suits for the removal of the mosque or for Hindu worship within it.
As said earlier, every place of worship, including one covered by the Ancient Monuments Act would retain the general protection of Section 3 of the 1991 Act. The Ancient Monuments Act 1958 brings its own protection. Section 16 of this law prohibits any use of a place of worship that is inconsistent with its religious character and obligates the State to ensure that outsiders will not have access to that place of worship unless its religious managers permit.
So, Muslim worship in a mosque must be protected even if that mosque is an archaeological monument covered by the 1958 law. The State is bound to prevent any Hindu practices or idolatry there, for such would be inconsistent with its religious character. This should be borne in mind before ordering ASI or other “surveys” to unearth idols.
Every “ancient monument” is not covered by the 1958 law, only those notified by the National Monuments Authority are. Neither the Gyanvapi mosque nor the adjoining Vishvanath temple appears to have been notified by the Authority.
In sum, whether the Gyanvapi mosque is covered by the 1958 law or not, it is protected by Section 3 of the 1991 Act. If it is covered by the 1958 law, Muslim worship in the mosque must be preserved and idolatry kept out in terms of Section 16 of that law. If it is not so covered it will have the special protection under Section 4 of the 1991 Act. It is hard to see a case for Hindu worship in the mosque in the face of such statutory odds.
Apologists for Hindu worship in the mosque have dispensed with logic. So one shouldn’t really be surprised at their suggestion that a UP law called the Kashi Vishvanath Temple Act 1983 should cover the mosque. Anyway, Section 7 of the 1991 Act overrides all laws inconsistent with its mandate.
The 1991 Act leaves no room for a determination of whether a mosque is indeed a mosque. It was enacted knowing that symbols of disparate faiths may be found in older mosques etc. and its purpose was precisely to end the relevance of such symbols. The Act’s conceptual simplicity settles the matter. Whatever may be found in a temple, it would remain a temple and whatever may be found in a mosque, it would remain a mosque.
Nitya Ramakrishnan is a lawyer.