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Does Places of Worship Act prevents disharmony or hinders the right of those facing injustice

There has been a lot of debate regarding the Places of Worship Act. The act gained popularity after the Ram Janmabhoomi case and now the Gyanvapi Mosque Case. This act was passed in 1991

In 1991, when the Ram Janmabhoomi movement was at its peak, the Narsimha Rao government introduced a bill which proposed to freeze the status of all the places of worship as they were on the independence of India i.e. August 15, 1947. Only one exception was given to the Ram Janmabhoomi case. The Act lays down that the character of a religious place cannot be altered from what it was on the day India got independence, i.e., August 15, 1947. (Most of the Hindu, Buddha, Jain temples situated in Northern India faced the situation rather than the temples in Southern India as North India faced more attack and rule of Muslim and British invaders)

About the Places of Worship Act, 1991

It was enacted during the Ayodhya dispute. It sought to protect the character of all places of worship. Under Section 4 (1) of this law, the character of a place of worship has to be maintained as it was on 15th August 1947. Any legal proceeding that seeks to change the nature of the religious place would cease with the commencement of the law in July 1991.

The Places of Worship Act excluded the Babri Masjid dispute from its ambit since the matter was under legal contest at that time and was politically very sensitive. According to the section 4(2) of the act:
A proceeding claiming that conversion of a place of worship took place after 15th August 1947, should be disposed of in the same manner as Section 4 (1) by ensuring the character of the place of worship as it existed on 15th August 1947.

Under the  Section 4(3) of the act, "if a place of worship of any religion is covered under the definition of ancient and historical monuments or an archaeological site or remains, this could be exempted from the ambit of the Places of Worship Act". 

In Satinder Kumar and Ors. vs. Union of India, a case about a Church in Shimla, the Himachal Pradesh High Court said any structure that is more than 100 years old and satisfies the definition of ancient monument under the law. Therefore, it falls outside the ambit of the Places of Worship Act. 

The Gyanvapi case

The current Varanasi case was filed by the Hindu side in 1991. It asked the court to declare that a significant part of the land on which the Gyanvapi mosque stood was the property of the original temple and then permanently stop the Muslim side from interfering in the possession of the land by the Hindu side.

In October 1997, a civil court ruled that the suit was barred by Section 4 of the Places of Worship Act, which said all suits and appeals seeking to change the character of a place of worship (from what it was in 1947) will stand abated with the commencement of the law.

In 1998, a revision petition was filed against this order before the district judge. The district judge ruled that the civil court should deal with the matter afresh "only after taking evidence from parties in order to determine the religious character of the place". The Muslim side challenged this order before the Allahabad High Court. Allahabad HC stayed the proceedings. This stay was in force till 2020.

Devotees of "Swayambhu Lord Vishweshwar" claim that the mosque was built at the site after a temple was demolished in 1669 on the orders of Mughal emperor Aurangazeb. 

Arguments in Favour of Removing Places of Worship Act
The Act of 1991 is ultra vires the fundamental rights enshrined in the Constitution since it bars the jurisdiction of the Supreme Court and furthermore nullifies the Fundamental Right(s) guaranteed by the Constitution of India as elucidated in Article 32 of "enforcement of fundamental rights" which cannot be suspended except as otherwise stated in the Constitution."

The concepts of faith, belief and worship form Articles 25 and 26 of the Constitution of India. Therefore, prohibiting citizens from approaching appropriate courts with respect to suit or any other proceedings to handover the land of any temple of certain essential significance, is arbitrary, unreasonable and mala fide in the context of the fundamental rights to pray and perform religious practice as guaranteed by Articles 25 and 26 of the Constitution of India.

The Supreme Court under Article 142 of the Constitution can pass any order to carry out for doing complete justice being in the public interest, while upholding the Constitution of India. 
The law was created retrospectively even though there were many demands regarding various temples from the community to restore the religious places.

Some also demand that the cutoff date is arbitrary and cutoff date should be before Muslim invasion in India.

Article 29 of the constitution states that "Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same". Hence the culture should be protected.

The constitution guarantees and asks the government under the directive policies to protect the historical and cultural monuments. Article 49 states that "Protection of monuments and places and objects of national importance It shall be the obligation of the State to protect every monument or place or object of artistic or historic interests, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be"

It is difficult to determine the religious character of a religious place for example the Hindu side of Gyanvapi Mosque says that the religious character of the Gyanvapi Mosque can be still considered a temple as the base and wall of the mosque can be archaeologically proved to be of the temple and if the excavations done and debris be evaluated, it can put a doubt on the religious character of the mosque.

A mosque constructed on temple land cannot be a mosque, not only for the reason that such construction is against Islamic law, but also on grounds that the property once vested in the deity continues to be deity's property and right of deity and devotees are never lost, howsoever long illegal encroachment continues on such property.

Also, supporters of the Indian reservation system argue that it creates positive discrimination against those who do not belong to the economically and socially backward classes, and that it is a compensation for those who have suffered greatly socially and economically at the hands of the upper classes.

Hindus have been persecuted (Persecution is defined as when an individual or a community is treated inhumanely or cruelly because of their religious or political beliefs.) Persecution may also include state-sponsored violence and mistreatment of a community) at various times by various rulers; their temples and other places of worship have been demolished; however, when the time comes in an independent India for them to demand their right to return to their holy land, which they have revered for years, there is a law (Places of Worship Act) that prevents them from doing so. So, in order to achieve positive discrimination and recompense for Hindus' persecution, killings, monuments, and places of worship being destroyed, they must be permitted to reclaim their temples in independent India.

Arguments in Favour of Protecting Places of Worship Act

It was established with the aim to stop and prevent all the controversies that arise out of mosques that were built after the demolition of temples. Also in the 1990s there were communal clashes in many parts of India regarding the Ram Janmabhoomi case. The Ayodhya movement also led to the demands for similar consideration to Shahi Idgah Mosque of Mathura and Gyanvapi Mosque of Varanasi which were supposedly built after demolition of Krishna and Shiva Temple respectively.

The Act also aimed at maintaining communal harmony in the long run in the society. 
It would also prevent any new controversies from arising in respect of conversion of any place of worship.
The places where there have already been settlements (another temple created on the place where the mosque was created after demolition of temple), there is no need to demand that the place be given back as it would create disharmony in the society. Eg: Mathura and Kashi temple.

The Supreme Court in the Ram Janmabhoomi Case, said that The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution.

There is a purpose underlying the enactment of the Places of Worship Act. The law speaks to our history and to the future of the nation. Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future"

In paragraph 652 of the verdict, it is stated:
This Court cannot entertain claims that stem from the actions of the Mughal rulers against Hindu places of worship in a court of law today. For any person who seeks solace or recourse against the actions of any number of ancient rulers, the law is not the answer. Our history is replete with actions that have been judged to be morally incorrect and even today are liable to trigger vociferous ideological debate.

If the law is removed, there would be many claims by different religious groups of the society to demand their religious right on the religious site of another religion.

Conclusion
At last the ball is with the supreme court to check the constitutionality of the act and pass any order which it seems fit for the peace and harmony as well as to provide justice to the persecuted Hindus, Jains and Buddhas.

References:
  • Places of Worship (Special Provisions) Act, 1991
  • Satinder Kumar and Ors. vs. Union of India (UOI) (26.04.2007 - HPHC) : MANU/HP/0104/2007
  • Article 25, Constitution of India
  • Article 26, Constitution of India
  • Article 32, Constitution of India
  • Article 29, Constitution of India
  • Article 49, Constitution of India
  • M. Siddiq (D) thr. L.Rs. vs. Mahant Suresh Das and Ors. (09.11.2019 - SC) : MANU/SC/1538/2019


Award Winning Article Is Written By: Mr.Rohan Kumar Tolani

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