Unpacking the Varanasi court’s Gyanvapi order and the recent challenges to The Places of Worship (Special Provisions) Act, 1991

Due to the rich history of religion in India, the Parliament was conscious of the hybrid nature of various religious structures, and the objective of the 1991 law was to ensure communal harmony by focusing on the date of independence as a unifying factor, as opposed to 'original' status of structures.

 ——

LAST week, a Varanasi court rejected a plea for carbon dating of the 'shivling' claimed to have been found inside the Gyanvapi mosque premises. Although the court cited the Supreme Court's directive to ensure its safe keeping to avoid tampering for its decision, the fact remains that the same court had last month, in Smt. Rakhi Singh & Ors. versus State of U.P. & Ors., allowed for the maintainability of a suit filed by a group of women, seeking the right to worship in the Gyanvapi mosque. At the core of the issue was the operation of the Places of Worship (Special Provisions) Act, 1991 ('PoW Act'), and the applicability of Sections 3 and 4 that bar conversion of places of worship and seeks to maintain continuity of their religious character as of August 15, 1947. 

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

Understanding the claims in Rakhi Singh 

First, the plaintiffs begin by arguing for the separate legal personalities of idols and their worship in India. This has relatively been a settled issue in Indian jurisprudence even in early cases such as Deoki Nandan versus Murlidhar (1957), in which it was observed by the Supreme Court that idols and deities have the capacity to hold property, and such property vests in the idol. 

The issue in the Varanasi case, however, is that the plaintiffs are claiming a right to worship in an old temple complex within a mosque. The court further accepted that parts of the temple were demolished in 1669 by Mughal ruler, Aurangzeb, and a mosque was constructed over this. At this juncture, the plaintiffs turned to heavily rely on the Supreme Court's 2018 judgment in the Ayodhya title dispute case to argue that despite idols in their physical form being identifiable, its destruction does not result in the 'termination of the pious purpose'. Thus, where the presence of the idol is intermittent (or even in its absence), the pious purpose continues to exist.

Second, given this pious purpose and the existence of these idols within the Gyanvapi compound, the plaintiffs sought to exercise their customary and fundamental right to religion, which entails the right to worship "visible and invisible deities" within the compound. This, however, could potentially run afoul Section 3 of the PoW Act, which 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."  

Third, as a consequence, the plaintiffs in Rakhi Singh relied heavily on presenting the claim of the right to worship as a civil and fundamental right. This is as opposed to presenting a claim of ownership that seeks to 'convert' a religious site.

Unpacking this, as recognised by the Supreme Court in Sardar Syedna Taher Saifuddin Saheb versus State of Bombay (1962), while the right to worship is protected under Article 25 of the Constitution, one also has a right "to worship in any religious place … as a right legally enforceable by suit" – that is, a civil right which prevents obstruction of such worship (for more, see here and the Supreme Court's judgment in Ugam Singh versus Kesari Mal (1970)). Thus, denying darshan of deities in the Gyanvapi compound would be an impediment on such a civil right to worship at the specific location, leading to a dispute.

On this basis, the maintainability of the petition itself demonstrates sound reasoning, given the rise of a dispute of a civil nature. However, there are some concerns that arise with the Varanasi court's pronouncements that are worthy of discussion. 

Stricter interpretation

A bare reading of section 3 of the PoW Act appears to bar conversion of a place of worship for one religious denomination into a place of worship for another denomination. The district court's reading of the law, allowing the maintainability of the suit, could be contended as it identifies 'conversion' of a "place of worship" in terms of the entirety of the religious compound: that is, from a mosque to a temple. This itself is consonant with Section 2(c), defining a 'place of worship', which includes a mosque. However, Section 4(d) states that the religious character of a place of worship as existing on August 15, 1947 shall continue, without conversion. Hence, the aim of the PoW Act would appear defeated if the character of a place of worship would be altered as well, thus not restricting itself to the entirety of the structure.

Similar concerns were raised by the Communist Party of India (Marxist) politburo, calling for a strict interpretation of the law. However, in praxis, this may be difficult to nearly ascertain. As has been recognised in the Supreme Court's Ayodhya judgment, it is quite likely that inscriptions of more than one religious character may co-exist on a disputed structure. In such a case, such ascertainment of the religious character of a structure is not barred.

Also read: A Crisis of Resistance: Aftermath of the Ayodhya Judgement

This was reiterated in the Supreme Court's courtroom exchange when confronted with the Gyanvapi case. This is particularly so due to the hybrid character of various religious sites that often harbour more than one religious symbol. While this seems valid, the concern that emerges is how such ascertainment may be carried out. In Gyanvapi, the court appears to be considering surveys and videographic tools. The efficacy of this, however, is an unresolved question, particularly given the woven history of many of these religious sites.

Recent challenges to the PoW Act

Interestingly, in 1995, in Aslam versus Union of India (W.P. (C) No. 541/95), a petition was filed at the Supreme Court seeking to ensure protection of the Gyanvapi mosque and the Shahi Idgah Mosque at Mathura. However, this was dismissed, observing:

"[The Union and state Governments] are mindful of their obligations and we have no reason to doubt that they will be found wanting in the performance of their constitutional and statutory duties of protecting those places (i.e., the two mosques)."

Also read: Varanasi and Mathura, new Ayodhya in the making

Since then, the PoW Act has been challenged in a number of recent petitions. In Ashwini Kumar Upadhyay versus Union of India, the Supreme Court is set to hear a challenge as to the constitutionality of the Act, and whether it contravenes principles of secularism. The petitioner's contention in this case is the arbitrary cut-off date under section 4, which declares that places of worship as existing on August 15, 1947 shall be maintained as such.

Incidentally, a perusal of the Lok Sabha deliberations from 1991 when the deliberation of the passing of the Act was considered, found similar arguments being raised concerning the arbitrariness of the cut-off date. Bharatiya Janta Party politician and then Lok Sabha member, Uma Bharti, for instance, heavily advocated for religious shrines to be restored to their "original status", as opposed to maintaining the 1947 status quo. 

It remains to be seen what the outcome of this is, and whether section 4 of the PoW Act is indeed an "arbitrary irrational retrospective cut-off date," as alleged in Ashwini Kumar Upadhyay. However, if one is to turn to the reasoning in the Ayodhya judgment, it would not appear so. The Supreme Court reasoned that the 1947 cut-off date was rooted in the Parliament's determination that "independence from colonial rule furnishes a constitutional basis for healing the injustices of the past".

As the Parliamentary deliberations themselves reflect, due to the rich history of religion in India, the Parliament was conscious of the hybrid nature of various religious structures, and the objective of the 1991 law was to ensure communal harmony by focusing on the date of independence as a unifying factor, as opposed to 'original' status of structures.