Gyanvapi: The Place of Worship
This post will explain the Places of Worship Act, 1991 and the backdrop to it, what the Supreme Court has to say, and the petition challenging its constitutionality.
The Varanasi District Court through its order last week permitted prayers to be offered by a Hindu priest at the Vyasji ka Tekhana (basement) inside the Gyanvapi Mosque premises. This follows a report by the Archaeological Survey of India (ASI) which was instructed by the same Court to survey the premises to ascertain whether the mosque was “constructed over a pre-existing structure of a Hindu temple”. The report was handed to the Court in a sealed envelope in December 2023 and it was shared with parties to the dispute late last month. The ASI report noted that it can be said that a “large Hindu temple” once existed at the site of the mosque.
Image Courtesy PTI
The Allahabad High Court and Supreme Court of India have been involved in the several cases over the issue at different points of time. However, none of the cases at any level of the judiciary have been finally adjudicated. One of the issues which will arise at the time of final adjudication is the application of the Places of Worship Act, 1991 (the Act). This post will explain the Act and the backdrop to it, what the Supreme Court has to say, and the petition challenging its constitutionality. To be clear, the post shall not explain the Gyanvapi Mosque-Mandir dispute.
The Backdrop to the Act
The BJP led by Lal Krishna Advani (the latest recipient of the Bharat Ratna) had organised a ‘Rath Yatra’ from Somnath to Ayodhya in late 1990. This was followed by the General Elections to the Lok Sabha in May-June 1991 where Congress emerged as the single-largest party with 244 seats (gain of 47) and the BJP emerged as the principal opposition with 120 seats (gain of 44).
In the Presidential Address as envisaged by Article 87 of the Constitution, the intention of the government to bring in a bill is observed. The President had said:
“Government will make every effort to find a negotiated settlement to the Ram Janma Bhoomi—Babri Masjid issue with due regard to the sentiments of both communities involved. In case of all other places of worship, a Bill will be introduced to maintain the status quo as on 15th August, 1947, in order to foreclose any new controversy.”
In the first session of the 10th Lok Sabha, Zainal Abedin of the Communist Party of India (Marxist) moved a Private Member Resolution worded as follows:
“This House urges upon the Government to take early steps to peacefully settle the dispute regarding the shrine at Ayodhya and to enact suitable legislation for preserving and maintaining the status quo of all religious shrines and places of worship as they existed on August 15, 1947”.
A discussion on this resolution took place for three days (11th July, 1991, 26th July, 1991 and 9th August 1991) for 2.5 hours each day. On the next day scheduled for the discussion to continue (23rd August, 1991), the government introduced the Places of Worship (Special Provisions) Bill. The Bill was passed by both the houses and received the President’s assent on 18th September, 1991.
Provisions of the Act
The Act is a short Act with only 8 sections. Section 1 relates to the short title, extent and commencement. Section 2 contains definitions. Section 7 declares the Act to override all other enactments and Section 8 amends the Representation of People Act, 1951 to add offences under the Act to disqualify people from holding office.
Section 3 places a bar on the conversion of places of worship. The bar relates not only to the conversion of a place of worship of one religion to another, but also to the conversion of a place of worship of one section/denomination of one religion to that of another section/denomination of that religion. For example, a Hindu temple cannot be converted to a place of worship of any other religion. At the same time, a Shia mosque cannot be converted into a Sunni mosque either.
Section 4 declares that the religious character of places of worship as on 15th August 1947 would continue to be the same as it existed on that day. It prohibits courts from entertaining cases relating to conversion of the religious character of places of worships. Further it also ensures that if there were any cases with respect to such conversion at the time of the commencement of the Act, such cases would abate (stop). Further, it creates exceptions for sites covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958, and for those places of worship in dispute which have been settled by courts, by parties amongst themselves, etc. before the commencement of the Act.
Section 5 carves out a special exception in the case of the then Ram Janmabhoomi-Babri Masjid site in Ayodhya. Section 6 provides the punishment for the offence of conversion as well as attempt to convert the religious character of a place of worship for a period of maximum three years and fine.
What the Supreme Court said
While the Ram Janmabhoomi-Babri Masjid site was explicitly kept outside the scope of the Act, the Supreme Court in M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors. (the Ayodhya Judgment) chose to comment on the Act. It observed the following:
“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.”
Challenge to constitutionality
Ashwini Kumar Upadhyay, a BJP member, has filed a writ petition in the Supreme Court in 2020 challenging the constitutionality of the Act. The following grounds inter alia have been taken by the petitioner:
1. The Parliament did not have legislative competence to enact the Act since it relates to a subject in the State list.
2. The State is prohibited from making laws violating fundamental rights and it is the fundamental right of Hindus, Jains, Buddhists, and Sikhs to restore their places of worship and pilgrimage ‘destroyed by barbaric invaders’. Similarly, the right of these communities to freedom of religion is also violated.
3. The creation of the exception for ‘the birthplace of Lord Ram’ but not for ‘the birthplace of Lord Krishna’ is arbitrary and irrational.
4. The right to justice and the right to judicial remedy is taken away by the Act since its bars the jurisdiction of courts.
5. The cutoff date of 15th August, 1947 ‘legalizes the illegal acts of barbaric invaders and foreign rulers’ and does not consider such acts between 1192 and 1947.
While some of the grounds border on the absurd, it would not be right to dismiss the idea that the petition reflects the sentiments of some section of the population of the country
Future of the Act
The Act is a legislation passed by the Parliament by simple majority. As such, it can be overturned by any political party or parties having the requisite majority in both Houses of Parliament. However, it is important to consider the wisdom in doing so, keeping in mind the Supreme Court’s observations about the Act. So far, no organised effort has been undertaken to convert the religious character of any other place of worship as in the case of the Ram Janmabhoomi-Babri Masjid site. In the words of the Sarsanghchalak of RSS Mohan Bhagwat
“Hum ko jhagda kyun badhana? Gyanvapi ke baare main hamari shraddha parampara se chalti aayi hai. Hum karte aa rahe hai woh theek hai. Par har masjid mein Shivling kyon dekhna? (Why escalate fights? On Gyanvapi, our faith has been there for generations. What we are doing is fine. But why look for a Shivling in every mosque?)”
The act itself is absurd. Stopping citizens from exercising their right to approach the court following the rule of law to reclaim a place of worship is foolishness at its best, especially when there is a history of long standing dispute at these sites, or worship at adjoining ones since these particular sites could not be taken back from the invaders. In a free country, stopping the citizens to approach the court is absolutely absurd. This will become a cause for people to take matters in their own hands, which must be avoided. The disputes should be settled through a judicial process. Furthermore, the grounds taken in the petition challenging the act are not unfair, it has arbitrarily singled out the Ayodhya Ram Janmbhoomi, the Act passed in 1991, when the Babri disputed structure was still standing. There is a history of litigation from the British era regarding the ownership and title of other religious sites - this Act in a way poses a bar for those ongoing litigations which is arbitrary in nature. Further, no one, no individual can claim to be representing the Hindu interest and make claims, concessions on their behalf. A site may hold huge significance for local Hindus and not be relevant for others, it is upto them to decide if they want to pursue matters further on behalf of the deity (which is recognised as a juristic entity).
There has been no organized effort to convert any religious site till now, yes. Is it to be avoided? Yes. How do you avoid it? By telling the people, you cannot approach the court? That will end up making the issue even more complicated as people would then resort to taking things in their own hands. I do believe that there has to be some finality, some logical conclusion and end to the turmoil which inevitably spurs up due to these issues, but passing this Act barring lawful means of dispute is not the solution. There needs to be acceptance of the reality on community level, by both communities, the denial of atrocities inflicted on the Hindus during the Sultanate and Mughal era needs to stop, the glorification of tyrants such as Aurangzeb needs to stop. There is no question of any apology from any community, since these invaders are certainly not the forefathers of the Indian Muslims - however, disowning and denouncing such barbaric acts of intolerance would go a long way in ensuring enduring peace. There is a collective pain in the conscience of Hindus which they have not forgotten after centuries - pain of having their temples looted, murtis destroyed, people massacred, and imposition of Jizya on their ancestors. There needs to be some reconciliation - some truth finding to enable people to move on and live peacefully - imagined stories, lies and fabricated history is not the bandaid which will work, it has and will complicate things further. There needs to be a consensus that all sites will not be taken to dispute - that the sites where worship has continued - symbolically or where the disputes have been ongoing should be up for discussion and settlement, but not all sites since there are perhaps thousands of temples which were destroyed and mosques/dargahs were built at those sites. Punyeshwar Mahadev and Narayaneshwar temples being converted to Dhakta and Thorla Sheikh Salla Dargah is one of the examples of this. There needs to be some finality, sure, but it certainly cannot be arbitrarily decided to be Ayodhya - ignoring the ongoing disputes of other sites.
Krishna is a highly venerated God by Hindus. One merely needs to read what happened to Katra Keshavdev temple of Mathura to understand what kind of intolerance and extremism the Hindus have faced - the dispute has continued since centuries - even legally - there should not be any bar for people to pursue it legally - acts of violence must be stopped at all costs. Also, think about it once - there are documented orders of Aurangzeb (in Maasir-e-Alamgiri) seeking to destroy Kashi and Mathura temples - in addition to others. Further, there are orders of Aurangzeb to bury the Katra Keshavdev temple murti under the stairs of the Jama Mosque in Agra - are people who go for prayers at the said mosque really unaware about it? Hindus filing a petition to retrieve that murti is thrown out - would it not further the goal of peace if the Muslim community itself takes some corrective measures by recovering the murti and handing it over to the Hindus. Treading on the murti of one of the most revered God of the majority community surely cannot enable Ganga Jamuni Tehzeeb and Bhaichara - it takes moral courage to accept the reality and denounce the atrocities of the past - if that consensus has been reached regarding the oppression with respect to caste identities - why is it not possible in this case - when it is crystal clear that the atrocities were committed by the people who are in no way related to the present Indian Muslim community.
In Kashi, the shivling has been found in Wazukhana, in the very centre of the ablution pond where the muslim devotees wash their hands and feet. Further, as per the sketch of the British antiquary James Prinsep (sketch attached), the said pre-existing temple was a Ashtamandap temple - the western wall of which is still surviving and supporting the three domes of the disputed Kashi site - it is not a coincidence that the Wazukhana is at the place of the central mandap which is said to have housed Mahadev - the very place where the Shivling has been discovered now. It is also not a coincidence that the new temple constructed by Ahilyabai Holkar houses a Nandi facing this very place. I know you have not gone into the details of the dispute at Gyanvapi, but it is really not separable from the broader discussion about the issue. There is a 1936 case in Kashi dispute, filed by the Muslim side seeking the property to be declared a Wakf, the British Government's affidavit in the case is telling. Further even in Mathura - the entire land was declared by the British as Nazul land which was in its entirety bought by Raja Patni Mal in 1815. After its purchase by Jugal Kishore Birla - a trust was formed - whose stated purpose and objective was to build a temple at the site - this trust goes defunct in 1958 and a bogus society is formed with the help of a person who was a member of the trust and this society unilaterally, without any authority and in complete violation of the stated purpose of the trust, goes on to gift a part of the property to the Sunni Wakf Board - this is certainly a legal dispute where the rights of the deity are also involved. Barring such disputes by the said Act is a cause of concern.
Kashi and Mathura temples have a history of destruction - which has not been forgotten, and cannot be forgotten, it is the right of Hindus to claim these sites, and to really enable lasting peace - the Muslim community should give these sites up as a start.