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In the ongoing Gyanvapi mosque case, the Supreme Court on May 17 directed the Varanasi district magistrate (DM) to ensure that the area from where the ‘shivling‘ was reportedly recovered be protected and Muslims be allowed to enter the mosque for prayers and other religious observances.
The interim order, pronounced by a bench of Justices D.Y. Chandrachud and PS Narasimha, included the following:
“In order to obviate any meaning and dispute on order of trial judge, the operation and ambit of the order dated May 16, 2022, shall stand restricted to the extent that the DM Varanasi shall ensure that the area where Shivling is found will be duly protected. The above direction shall not in any manner restrain or impede access of Muslims to the mosque or use of it for performing prayers and religious observances.”
The top court was hearing an appeal filed by the Anjuman Intezamia Masajid committee challenging the Allahabad high court order granting permission to a court commissioner, appointed by a Varanasi civil court, to inspect and conduct a survey and videography of Gyanvapi mosque.
The appeal has come out of a suit filed by five Hindu women stating that the Gyanvapi mosque houses Hindu deities and that Hindus should be allowed to worship their Hindu Gods at the site.
Previously the Varanasi court had appointed a court commissioner to conduct a survey and videography on the site. This order was challenged before Allahabad high court, but was dismissed on April 21.
Later, the Masjid committee filed a plea before the Varanasi court claiming that the court commissioner was biased and should be replaced. The same was also dismissed.
The dispute related to Gyanvapi mosque has stirred concerns among citizens regarding the status of the mosque and the relevance of the Places of Worship Act, 1991.
While some claim that the Gyanvapi order is a blatant violation of the 1991 Act, others are arguing that the ‘Maa Shringar Gauri’ shrine – supposedly located within the mosque complex – falls under the ambit of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and is, therefore, exempted from the Places of Worship Act as per Section 4(3)(1) and there is no violation.
Understanding the role of the Places of Worship Act, 1991
The Places of Worship Act was passed by P.V. Narsimha Rao’s Congress government during the Ram Mandir movement. The purpose of the Act is to maintain the religious nature of a place of worship as it was on August 15, 1947. The only exception to this object is the Babri Masjid dispute.
Section 3 of the Places of Worship Act, 1991 talks about the bar on 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(1) of the 1991 Act declares:
“…the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day.”
Section 4(2) states:
“If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority.”
Section 6 of the Act provides punishment in case of contravention of Section 3. It states:
“Whoever contravenes the provisions of section 3 shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.”
The word ‘conversion’ used under Section 3 of the Act has been defined under section 2(b) of the Act, which states that, “’conversion’, with its grammatical variations, includes alteration or change of whatever nature.”
The present suit was filed by five Hindu women in 2021 and sought a declaration from the Varanasi court that Hindus are entitled to have darshan, perform rituals and pooja of Maa Srinigar Gauri, Lord Ganesh, Lord Hanuman and other visible and invisible deities within the Gyanvapi mosque.
This would essentially mean changing or altering the nature of the Gyanvapi mosque from what it has been since August 15, 1947, which is against the bar mentioned under Section 3 of the Act.
Another reason why the relevance of Places of Worship Act is being discussed in the present matter is because the above provisions make it abundantly clear that not only there is a bar on the conversion of a religious place, but all places of worship (except the Babri Masjid disputed land) must maintain the same character as they did on August 15, 1947 and must be left out of the purview of judicial review (Section 4(1)).
Interestingly, contrary to this view, the president of the Hindu Sena, Vishnu Gupta, filed an affidavit before the Supreme Court seeking direction that the plea filed by the Anjuman Intezamia Masjid committee be dismissed. He argued in the affidavit that the present matter is exempted from the purview of Places of Worship Act, 1991 under Section 4(3)(a).
Section 4(3)(a) states that nothing contained in Section 4(1) and Section 4(2) shall apply to:
Any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force.
Challenge to the Places of Worship Act
The said Act is currently under challenge before Supreme Court as well. The petition was filed by former Bharatiya Janata Party (BJP) spokesperson and advocate Ashwini Upadhyay, who is challenging the constitutional validity of Sections 2, 3 and 4. It was stated in his petition that the impugned Act is offensive to Articles 14, 15, 21, 25, 26 and 29 of the constitution and also violates the principles of secularism.
Upadhyay stated that the Union government, while passing the Act, created an arbitrary, irrational, retrospective, cut-off date and declared that the character of pilgrimage should be maintained as it was on August 15, 1947.
Another petition challenging the law was filed by former BJP Rajya Sabha MP Subramanian Swamy and advocate Satya Sabharwal.
A three judge bench consisting of erstwhile Chief Justice of India S.A. Bobde and Justices A.S. Bopanna and V. Ramasubraminian had issued notice on the petition on March 26, 2021 and tagged it with the petition filed by Ashwini Upadhyay.
Interestingly, a larger bench of the apex court had upheld the constitutional relevance of the aforesaid Act while dealing with the Babri Masjid dispute, back in 2019. The court said that by enacting the aforesaid law, the state has 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 court said that the Places of Worship Act is a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the constitution.
“The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the 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,” the court had observed