Validation of Places of Worship Act

On constitutional challenge to the law, the apex court merely needs to hear itself

Alok Tiwari

It is becoming increasingly clear that the judiciary is, wittingly or unwittingly, becoming an instrument to foment communal trouble in the country. As noted in this column last week, flashpoints are being manufactured around one mosque after another alleging they were built in place of temples. This has already cost lives. The modus operandi is that a Hindu group approaches a local court asking that a particular mosque be surveyed to know whether a Hindu temple ever existed in its place.

The Parliament, in 1991, had enacted Places of Worship Act that forbade precisely such attempts. It mandates an imprisonment of three years for anyone converting or trying to convert the status of a place of worship as it existed on Aug 15, 1947. Ideally, the perpetrators in such cases should have been booked under the act and sentenced accordingly. However, such petitions draw strength from a Supreme Court observation while hearing Gyanvapi mosque case that carrying out a survey to determine the nature of the place of worship was not barred.

A major development since last week is that the Supreme Court has agreed to hear a bunch of petitions challenging the constitutional validity of the Places of Worship Act itself. These, no surprise here, have been filed by Hindu groups and activists saying the law impinges on their religious freedom. A three-judge bench headed by Chief Justice Sanjiv Khanna will hear them. It is not the intention here to second guess the apex court in the case.

However, as recently pointed out by Justice (retd) Rohinton Nariman, SC has already validated the law in glowing terms. It has done so in the voluminous SC judgment in Ayodhya case that most votaries of Hindutva celebrate as watershed. Though the validity of the Act itself was not an issue before the court, it came up as a judge of Allahabad high court, in another Ayodhya related case, had sought to restrict the scope of the Act. Not only did the five-judge bench endorse the law but also rebuffed the said attempt to enlarge the exceptions under it.

The Ayodhya judgment devotes an entire section to this law (Section I) in paras 78 to 85 tracing its origin and quoting the then home minister who had piloted the bill in both houses of parliament. It also extensively quotes its provisions and the exemptions provided. Its own observations on the law are so eloquent and clear that they are worth quoting at length.

The court observes: “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 operationalized obligations to uphold equality of all religions and secularism which is part of the basic features of the Constitution. The… Act imposes a non-derogable obligation towards enforcing our commitment to secularism… It is hence a legislative instrument designed to protect the secular features of Indian polity, which is one of the basic features… Non-retrogression is a foundational feature of fundamental constitutional principles of which secularism is a core component… (The law) preserves non-retrogression as an essential feature of our secular values.”

Clearly the court believes the law not only to be emanating from and carrying out the purpose of the Constitution but also serving its basic features. It goes even further and repeatedly underlines secularism as a basic feature that is not open to amendment by even the brute majority of the parliament. It is almost as if the court foresaw a challenge to the law and pre-emptively asserted its need as well as constitutional validity.

The court continues: “The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects a commitment of India to equality of all religions. Above all, …it 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 Act. The law speaks to the history and the future of the nation… 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 worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to suppress the present and the future”

The apex court thus, while making a one-time concession to majoritarian demand and clearing the way for Ram temple in Ayodhya as a token of righting a perceived historical wrong, has made its intent absolutely clear that the process cannot be used as a toolkit to ignite further communal fires and claim more mosques. The Ayodhya judgment itself has been criticised for indulging more in dispute resolution than dispensing justice. It probably realized that denying Ram temple will cause too much turmoil regardless of the merits of the claim.

Maybe, its authors were acutely aware of this and did not wish their judgment to open the floodgates for future demands. It was pretty accurate foresight as seen from later developments. Ideally, the lower courts too should have seen the petitions for what they are, just a means to keep the communal cauldron boiling. The police too should have acted accordingly. Since a five-judge bench has already spoken on the law’s constitutional validity, will the new three-judge bench use the opportunity to shut down the repeated attempts to create trouble using the lower judiciary? I keep my fingers crossed.

This column appeared in Lokmat Times on Dec 11, 2024