Author: Shiwangi Singh, III year B.A.,LL.B From Symbiosis Law School, Noida.
Introduction
In a recent PIL filed by former BJP spokesperson and a renowned lawyer Mr. Ashwini Kumar Upadhyay, The Places of Worship Act,1991 has been challenged. The petitioner’s contention is based on three grounds:
1. Section 2,3 and 4 of the impugned Act bars judicial review which is a basic structure of the Indian Constitution.
2. According to Hindu Law, deities are eternal. Therefore, it continues to exist even after the destruction of idols and temples. Mosques on the other hand can only be built after the acquisition of Waqf. Since the destruction of Hindu temples does not create waqf, mosques constructed are not valid under Islamic Law.
3. The cut-off of 15 August 1947 is arbitrary and unfair to Hindus whose temples have historically been destroyed since 1192 A.D. It is violative of Articles 14 and 15 as well as the religious freedom under Articles 25,26 and 29.
However, a quick peep into the Supreme court’s records and legislative intent behind enacting The Places of Worship Act, 1991, spotlights the frivolity of the petition.
The Legislative Intent behind the Law
The Indian Legislature did not recognize the need for legislation like the Places of Worship Act, 1991 for 30 years after independence. The Indian Constitution which was secular in character since its inception irrespective of the fact that the term was officially inserted into the Constitution only in the year 1975, guaranteed the places of worship belonging to all the religions in India will be protected.
However, in the early 1990s, things took a turn to the worst. The BJP leader L.K. Advani had initiated a “rath yatra” and demanded the building of the Ram temple where the Babri Masjid was still standing. He was arrested in Bihar and several kar sevaks were injured in Uttar Pradesh intensifying the communal tension in the country.
It was amidst these circumstances, that Home Minister S.B. Chavan moved a bill in the Parliament articulating that “It is considered necessary to adopt these measures given the controversies arising from time to time concerning the conversion of places of worship which tend to vitiate the communal atmosphere… Adoption of this Bill will effectively prevent any new controversies from arising in respect of conversion of any place of worship…”
The purpose of the Act was therefore to safeguard the principle of secularism in India and to assure the people that their religious places will not be altered by the ongoing radical movements in India.
Advancing to 2020, the very same act is being challenged in the Supreme Court as being a violation of Secularism and unfair and biased against Hindus.
Irregularities in the Petition
The petitioner has pointed out that Indian temples have been pillaged and plundered since 1192. By imposing an embargo from 1947 onwards, the legislature restricted Hindus and other communities from restoring their places of worship. Therefore, the Act is violative of Articles 14, 15, 25,26, and 29.
The petition disregards earlier judgments pronounced by the Supreme Court of India. The court has clearly in M. Siddiq
“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”
People need to understand that although the Indian civilization dates back to 9000 years ago, India as a nation emerged only in 1947. The Constitution of India which came into force in 1950 is the ultimate provider and protector of rights guaranteed to the citizens of India. Therefore, the petitioner’s claim of Indian temples being pillaged as early as 1192 cannot be sustained as there was no question of the Indian State and rights of people in the absence of the Constitution.
Besides, if the petitioner’s claim is to be accepted here for once, it would open Pandora's box which is better shut. History abounds with not only Muslims converting Hindu temples but also with Hindu kings destroying religious institutions of defeated kings. For example, in 642 CE when the Pallava ruler Narasimhavarman I defeated the Chalukyas, the latter’s capital city Vatapi was raided and the Pallava king brought the image of Ganesha to his kingdom in modern-day Tamil Nadu. This is just one of many instances.
Since it was not possible to rectify the mistakes of the past, the legislature by passing The Places of Worship Act, 1991 limited any scope of further violence. The act protects the non-retrogression of the basic feature of secularism. The 1990s riots are an example of how religious sentiments when maneuvered wrongly can challenge the peace and security of the country along with causing irreparable damage to its secular character. As the Supreme Court has rightly remarked in M Siddiq,
“Historical wrongs cannot be remedied by the people taking the law into 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.”
The courts in their earlier decisions never tackled the question of the constitutionality of the Places of Worship Act. However, in the very recent Ayodhya judgment, the court held, “The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution… The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.”
Such observation by the Court shows an implied acceptance of the validity of the said Act. However, the question is yet to be discussed elaborately by the Supreme Court.
Conclusion
Secularism in India has a very different implication as compared to other countries such as Turkey and France. However, in 75 years since independence, there have been numerous communal riots. This can be attributed to the fact that whilst India State is fairly secular, the Indian society is not. A country whose people have seen the virtues and vices of various religions; India continues to search for a hole to creep out of the clutter. There have been numerous attempts or at least demands to return to the original position.
However, as the court has pointed out, The Places of worship Act is an attempt to commit to Secularism and accommodate all religions and peaceful reconciliation of rights of people belonging to different faiths. A compromise was made where the Ram Janmabhoomi and now the Krishna Janmabhoomi have been excluded from the purview of the Act. However, complete scrapping down of the Act would remove any bar on the reconversion of the religious places which would open the pandora box as ancient Indian civilization has seen multiple instances where religion was established on the corpse of another religion. Not just the Hindu temples but various Gurdwaras, Jain temples, and Buddhist monasteries have been demolished.
The PIL focuses very narrowly on a single religion and not the future of India as a country. The reluctance on the part of the court to do away with the Act appears to be very obvious and justified as it has the responsibility to protect the rights of the whole country at large.