Places of Worship Act: Is Supreme Court Unwittingly Helping Centre With Proxy Litigation?

The Supreme Court's decision to hear the challenge may have the result of helping the Centre avoid the political embarrassment of repealing a law and opening the door to new religious disputes.

The Supreme Court’s decision to admit – rather than dismiss – petitions challenging the constitutionality of a 1991 law prohibiting the religious conversion of places of worship as they existed on the day of Indian independence is curious on the face of it, as  a larger bench had upheld the law’s relevance as recently as 2019.

In settling the Ayodhya dispute in favour of the Ram temple’s campaigners – many of whom were involved in the crime of demolishing the Babri Masjid – the court in 2019 saw the 1991 law as an assurance against the same methods being used elsewhere. And thereby hangs a tale.

The Indian Penal Code contains various provisions to address offences relating to religion. Of these, Section 295 states that whoever destroys, damages or defiles any places of worship or any object held sacred by any class of persons with the aim of insulting the religion of any class of person or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished.

Section 295 also provides for punishment of a person who – with the deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or visible representation or otherwise – insults or attempts to insult the religion or religious beliefs of that class.

The Supreme Court, in 1994, expressed no surprise that those who razed the Babri Masjid on December 6, 1992 were not deterred by such provisions. In paragraph 143 of the M. Ismail Faruqui v Union of India judgment, the court said that those “similarly minded are as little likely to be deterred by the provisions of the Places of Worship (Special Provisions) Act, 1991.”

The Supreme Court made this observation in response to the Centre’s submission (made on the basis of the 1991 Act) that what had happened at Ayodhya on December 6, 1992, could never happen again.

The 1991 Act says that 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.

It declares that the religious character of a place of worship existing on August 15, 1947, shall continue to be the same as it existed on that date. The Act specified that nothing contained in the statute shall apply to the place of worship which was the disputed structure at Ayodhya and to any suit, appeal or other proceedings related to it.

Supreme Court’s views on 1991 law

In M. Ismail Faruqui, the Supreme Court’s constitution bench struck down the Acquisition of Certain Area at Ayodhya Act, 1993, as being unconstitutional and also declined to answer a question put to it by the president of India on whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janmabhoomi-Babri Masjid (including the premises of the inner and outer courtyards of such a structure) in the area on which the structure stood.

In doing so, the bench also dealt with the relevance of the 1991 Places of Worship Act, 1991, even though there was no challenge before it.

The bench in Ismail Faruqui found that the 1993 Act and the president’s question (called a ‘reference’) favoured one religious community and disfavoured another. The purpose of the reference is opposed to secularism and is unconstitutional, it held. Besides, the reference does not serve any constitutional purpose, the bench noted.

An armed police officer stands guard on the bank of Sarayu river ahead of the foundation-laying ceremony for the Ram temple in Ayodhya, India, August 4, 2019. Photo: Reuters/Pawan Kumar

The bench was in no doubt that even if it opined that no Hindu temple or Hindu religious structure existed on the site before the Babri Masjid was built, there was no certainty that the mosque, which had been demolished by Hindutva mobs, would be rebuilt.

Instead, the Ismail Faruqui judgment grandly declared: “Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it”.

Ayodhya as a storm did pass, in a manner of speaking, with the Supreme Court settling the title dispute on November 9, 2019 in favour of the plaintiffs seeking a Ram temple there. Its controversial judgment –  akin to rewarding the leaders who had mobilised the mobs which demolished the mosque – is likely to be debated for years, not always to court’s credit. But will the Supreme Court compound its position now by allowing its dignity and honour to be compromised because of its willingness to hear a challenge to the validity of the 1991 Act 30 years after its enactment?

Also read: Supreme Court’s Ayodhya Verdict Rests on a Glaring Contradiction

In Ismail Faruqui, the Supreme Court expressed its lack of trust in the then government’s submission that it proposed to settle the Ayodhya dispute in terms of the court’s opinion. The Supreme Court opined that using the court’s opinion as a springboard for negotiations could not mean that the dispute would be resolved in terms of such opinion.

History repeats itself

In M. Ismail Faruqui, the Supreme Court, without any lis  before it, observed that the 1991 Act – just like the relevant provisions of the Indian Penal Code aimed at curbing the spread of communal poison – was unlikely to deter the  vandals who had destroyed the Babri Masjid from eyeing other disputed structures. Skeptical of the executive, the Supreme Court in M. Ismail Faruqui was unwilling to give the Centre a good conduct certificate for the 1991 Act based merely on its claims.

The passage of time, however, prompted the same Supreme Court to look at the 1991 Act differently while settling the Babri Masjid title dispute in 2019.

As in M. Ismail Faruqui, the Supreme Court, in its 2019 judgment – M. Siddiq –  commented on the 1991 Act without any lis before it. But unlike the 1994 bench, the 2019 bench understood the relevance of the 1991 Act for the present and for the future more clearly than what its predecessors could earlier.

By prohibiting the conversion of any place of worship, the Act speaks to the future by mandating that the character of a place of public worship shall not be altered, the five judges on the 2019 bench in M. Siddiq unanimously held. Second, the law seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on August 15, 1947 when India achieved independence from colonial rule, the bench held.

Those who now criticise the imposition of an “arbitrary” cut-off date to bar conversion of any place of worship must read the full sentence to understand why it is significant.

The expression ‘place of worship’ is defined in the broadest possible terms to cover places of public religious worship of all religions and denominations. It provides for abatement of suits and legal proceedings with respect to the conversion of the religious character of any place of worship existing on August 15, 1947. Coupled with this, the Act imposes a bar on the institution of fresh suits or legal proceedings, the bench in M. Siddiq underlined.

Also read: Varanasi Court Issues Notice in Suit Seeking Removal of Gyanvapi Mosque

The only exception is in the case of suits, appeals or proceedings pending at the commencement of the law on the ground that conversion of a place of worship had taken place after August 15, 1947. The Act also bars its application to ancient and historical monuments or archaeological sites or remains, and to any legal proceeding which has been finally decided, settled or disposed of before the commencement of the Act. Conversion of the places of worship by acquiescence before the Act’s commencement, or in respect of which the cause of action would be barred by limitation are also excluded from the purview of the Act, the bench in M. Siddiq noted.

In M. Siddiq, the Supreme Court cited former MP Malini Bhattacharya, who explained the significance of the cut-off date thus:

“…this August 15, 1947 is crucial because on that date we are supposed to have emerged as a modern, democratic and sovereign State thrusting back such barbarity into the past once and for all. From that date, we also distinguished ourselves…as State which has no official religion and which gives equal rights to all the different religious denominations. So, whatever may have happened before that, we all expected that from that date there should be no such retrogression into the past”. (Emphasis supplied by the bench)

In paragraph 82 of M. Siddiq, the bench observed:

“The Places of Worship Act which was enacted in 1991 by Parliament protects and secures the fundamental values of the Constitution.  The Preamble underlines the need to protect the liberty of thought, expression, belief, faith and worship. It emphasises human dignity and fraternity. Tolerance, respect for and acceptance of the equality of all religious faiths is a fundamental precept of fraternity…”

The bench reasoned that parliament had determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship would be preserved and that their character would not be altered.

To quote the bench in M. Siddiq:

“The law addresses itself to the State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level. Those norms implement the Fundamental Duties under Article 51A and are hence positive mandates to every citizen as well. The State, has by enacting the law, enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution. The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution…Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.”

Ashwini Kumar Upadhyay. Photo: Twitter/@ANI

In Ashwini Kumar Upadhyay v Union of Indiaadmitted by the Supreme Court last week, the petitioner – a former spokesperson of the Bharatiya Janata Party – challenges the constitutional validity of sections 2, 3, and 4 of the 1991 Act, alleging that they offend Articles 14, 15, 21, 25, 26 and 29 of the constitution, besides violating the principles of secularism, which are an integral part of the basic structure and Preamble of the constitution.

Upadhyay and the BJP have their sights on the Eidgah in Mathura, which the Sangh parivar says is the birthplace of Krishna. And attempts are also being made to revive the  dispute over the Gyanvapi mosque in Varanasi, which stands close to the Kashi Vishvanath temple.

The grounds of challenge invoked by the petitioner include “arbitrary irrational retrospective cut-off date,” and “unjustified bar on the remedies against illegal encroachment on the places of worship and barbaric acts of the invaders”.  Anyone reading M. Siddiq carefully will understand that these grounds have already been answered.

True, there may be unanswered grounds such as whether the 1991 Act can take away the power of high courts and the Supreme  Court by imposing a bar on them hearing pending cases. But the question of whether the jurisdiction of the courts has been compromised by the 1991 Act can readily be answered by how the judiciary itself – which is more sensitive about its powers than others – considered it. On the two occasions when the Supreme Court discussed the Act, it did not consider the bar on the hearing of pending cases by the courts as a possible infirmity.

It is possible to argue that it was not necessary for the bench in M. Siddiq to discuss the legislative intent behind the PoW Act because the Act expressly excludes the Ram Janmabhoomi-Babri Masjid case from its purview. But the criticism that the bench’s assertion of secularism as a constitutional value was wholly unwarranted because it is at odds with “demonstrable facts and objective legal standards” is least convincing.

Also read: The Past Cannot be Righted by Inflicting Wrongs on History

The fact that the petitioner – who is aligned with the ruling establishment – has challenged the validity of the 1991 Act in the garb of public interest litigation must alert the court to the fact that the Centre is perhaps using a proxy litigation to avoid the political embarrassment of repealing the Act through parliament, where it enjoys brute majority. Last year, a similar petition was filed by the BJP leader, Subramanian Swamy (W.P.(c) 619/2020).

A responsive government at the Centre would clearly oppose the hearing of the petition challenging the 1991 Act’s validity in view of the court’s clear ruling in the 2019 Ayodhya judgment. That judgment clearly spoke in favour of the 1991 Act’s validity.

In the light of such a clear enunciation of the validity of the law by a constitution bench of which the present CJI, S.A. Bobde, was a member, the latest petition challenging the validity of the 1991 Act 30 years after its enactment would surely have been a fit case for dismissal at the threshold stage. But the Supreme Court appears to be giving a long rope to the Centre to succeed in proxy litigation that will repeal a law it is not happy with, while it has no political courage to use its so-called mandate to achieve similar results in parliament.

Last year, a bench of Justices Arun Mishra, B.R. Gavai and Krishna Murari dismissed as frivolous two public interest litigation petitions filed by two different NGOs which asked that the artefacts and monuments reportedly discovered during the digging and land levelling in preparation for the temple construction at Ayodhya be conserved under the supervision of the Archaeological Survey of India.

Rear view of the Babri Masjid in Ayodhya before it was demolished. Photo: Wikimedia Commons

The bench interpreted the petitions as disguised attempts to “revive” the Ayodhya dispute, which was legally settled in M. Siddiq.  The bench imposed costs of Rs 1 lakh each on the petitioners. According to reports, what infuriated the bench was the petitioners’ claim that the artefacts discovered at the site might belong to an era which preceded the rise of Hinduism.

The current petitioners challenging the 1991 Act’s validity cannot be accused of seeking to reopen the Ayodhya verdict, as they are certainly happy with its outcome. But the petitioners’ grievance that the bench in M. Siddiq  did not have the occasion to hear the parties directly aggrieved by the PoW Act, and therefore, none of its observations on the intent behind the legislation and its significance to the Constitution’s commitment to secularism have any real legal value, may as well be considered as an attempt to question the rationale of the verdict.

By articulating the merits of the PoW Act, the bench had implied consideration of the possible grievances against it (and found them of no significance) in resolving the dispute before it.

While many commentators are aggrieved with the Supreme Court for rendering justice at the expense of truth, the fact that the M. Siddiq bench saw the 1991 Act as relevant for protecting the status of other religious structures as they stood at the time of independence has drawn a line that cannot be easily transgressed. To dismiss the bench’s observations on the Places of Worship Act as mere obiter, as the BJP suggests, is to strike at the very root of the judgment. If the Supreme Court now goes along and reopens this question, it will undermine an essential ingredient of its Ayodhya ruling.