Striking down the Places of Worship (Special Provisions) Act, 1991 won’t be an easy task

The essence of the Places of Worship Act and the Supreme Court's Ayodhya judgement is that after the Ayodhya dispute, no other place of worship can be reopened like it, whatever the case may be, since the Act is protected under the aegis of the Basic Structure of the Constitution.

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ON September 12, the Varanasi district judge allowed the maintainability of civil suits filed by five women to offer prayers within Gyanvapi mosque complex. The Gyanvapi mosque-Kashi Vishwanath Temple case is an old and polarising issue in India. The controversy has escalated following a Varanasi civil court-appointed commission's videography assessment of the Gyanvapi mosque.

It is an acknowledged fact that Mughal emperor Aurangzeb ordered the demolition of the Kashi Vishwanath temple in Mathura in 1669, and the mosque was built on the site. What matters in law, as per the Places of Worship (Special Provisions) Act, 1991 ('Places of Worship Act') is the status of the Gyanvapi mosque on August 15, 1947.

The challenge to the constitutionality of this statute before the Supreme Court is hoping to enable the Hindu side to achieve the same denouement in Varanasi or Mathura as it had in Ayodhya. But doing so wouldn't be an easy task because the Act is protected under the aegis of the Basic Structure of the Constitution.

Also read: The challenge to Places of Worship (Special Provisions) Act, 1991 is misconceived

What is the historical context of the Places of Worship Act?

In 1991, when the Ayodhya movement was picking up, and amid simmering tensions and communal violence, the then Union Government led by the Indian National Congress' P.V. Narasimha Rao passed in Parliament the Places of Worship Act, in an effort to quell any future controversy arising out of the ownership and character of any place of worship in the country.

The essence of this law is in Section 4 of the Act, which states that nobody would change the character of any place of worship that India inherited on August 15, 1947. It bars courts from entertaining cases filed over the character of such places of worship. This law was to be applied to every place of worship in India except the Ram Janmabhoomi–Babri Masjid site in Ayodhya. This is because this law also entails that with its passage, any other subsisting litigation relating to any other place of worship of any other religion would cease to exist. This very provision was the spirit of this law.

What was said in the Ayodhya judgement about the Places of Worship Act?

In 1992, the Babri Masjid was destroyed, and in 2019, the Supreme Court judgement came in which the court accepted the Hindu claim to the land on which the Ram Janmabhoomi temple and Babri Masjid stood.

The judgement also underlines a few important things. The five-judge Constitution bench of the court that gave this unanimous decision, was perspicacious in referring to the Places of Worship Act, and positioning it within the basic structure of the Constitution. This is because the Constitution can be amended by the Parliament, but only as long as it doesn't violate the basic structure of the Constitution, as held by the Supreme Court in Kesavananda Bharti versus. State of Kerala (1973).

The Ayodhya judgement states:

"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."

It then refers to Article 51A of the Constitution, which deals with citizens' fundamental duties, and claims that it is the citizens' responsibility, not the government's, to ensure that they do nothing that violates the Constitution's injunctions.

Also read: Places of Worship (Special Provisions) Act, 1991: A shield for Indian secularism?

It then goes on to say that, "The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian 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."

Here, one may ponder that the judges are sounding repetitive, but they are perhaps doing so as to be absolutely clear, and are expressly articulating the idea of granting the protection of the basic structure of the Constitution to the Places of Worship Act.

The judgement also states that there is a purpose underlying the enactment of the Act, which is intrinsically related to the obligations of a secular State. The Act imposes a duty upon the State to preserve and protect the equality of all faiths as an essential constitutional value, which in turn has the backing of being a basic feature of the constitution. The law was created by acknowledging both the nation's history and its future, and in order to preserve the character of the Places of Worship Act, the Parliament mandated that history and its wrongs shall not be used as an instrument to subjugate both the present and the future.

What is the essence of the Ayodhya judgement relevant here?

The judgment states that secularism is one of the fundamental features of the Constitution, as earlier stated by the Supreme Court's judgment in S.R. Bommai versus Union of India (1994), and that the Act was a critical step in "protecting the secular features of the Indian polity."

Also read: The Journey from S.R. Bommai vs. Union of India to Javed vs. State of UP

Moreover, the judgement also states that the Act protects the doctrine of non-retrogression. This doctrine was explained by then Chief Justice of India Deepak Misra in the opinion authored by him for himself and Justice A.M. Khanwilkar in Navtej Singh Johar versus Union of India (2018): "The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise." This implies that rights cannot be repressed, and that society must progress rather than regress.

Any attempt to whittle away at the Places of Worship Act would likely violate the doctrine of non-retrogression as it would reverse the protections offered to places of worship that have existed for many decades and to communities that have worshiped there. If this protection is not provided, a community's right to worship will be constantly threatened, whether it is a minority or a majority group. This is irreconcilable with a secular society in which all citizens have the freedom to practise their preferred faith.

If we try to understand the spirit of the judgement, then any judicial scrutiny of the Act must be extremely careful and circumspect. Moreover, in the judgement, the argument is not about history or what injustice has been done, but that history is not an excuse to jeopardise the present and the future.

The essence of the Places of Worship Act and this Supreme Court judgement is that after the Ayodhya dispute, no other place of worship can be reopened like it, whatever the case may be.