Determining religious character of worship place not prohibited under Protection of Places Act: SC

A debate has broken out following the plea filed by five Hindu women seeking permission to worship idols within the Gyanvapi Mosque complex.

New Delhi, May 20: While transferring the Gyanvapi Mosque case to the District Judge, the Supreme Court on Friday made an important oral observation regarding the Protection of Places of Worship Act, 1991.

The Bench comprising Justices D Y Chandrachud, S Kant and P Narasimha orally said that the process of determination of religious character of a place of worship is not prohibited under the Protection of Places of Worship Act. The civil judge who had ordered the survey had maintained that the Places of Worship Act does not bar ascertainment of religious character of a place. The SC today however was against the spirit of what the civil judge had observed.

The District Judge will decide the Mosque committee's plea that the suit is not maintainable, the court also said. Until such time, the interim order protecting the 'Shivling' area and free access to Muslims to offer namaz must continue, the court further noted.

The SC also said that the the District Judge would decide on the matter on priority the Mosque management committee's plea that the suit is not maintainable because of the bar under the Protection of Places of Worship Act.

A debate has broken out following the plea filed by five Hindu women seeking permission to worship idols within the Gyanvapi Mosque complex. The women stated that the Mosque was built after demolishing a Temple which stood there in the 17th century.

Last month a court at Varanasi ordered a video survey of the Mosque to find out the veracity of the claim. The order was challenged in the Allahabad High Court, but after the same was rejected the Supreme Court was moved.

In their plea, the Muslim side has been referring to the Places of Worship (Special Provisions) Act of 1991. It also referred to Section 4 that bars filing any suit or initiating any other legal proceeding for a conversion of their religious character of any place of worship as existing on August 15 1947.

Section 5 of this act however says that the case of Babri Masjid-Ram Mandir in Ayodhya is an exception to this Act and any decision, order of proceedings related to this case are exempt from the Act. The Act contains right sections of which Section 3, 4 and 5 hold utmost importance in the Gyanvapi case.

Section 3 of the Act bars the conversion of places of worship. It says, " 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."

"The religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day". Section 4(2) of the Act further states that "any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority,' Section 4(1) of the Act says.

Suits, appeals and legal proceedings can be initiated with respect to conversions of the religious character of any place of worship after the commencement of the Act if the change of status took place after the cut off date of August 15 1947, Section 4(1) also says.

With regard to the Gyanvapi Mosque, the original suit was filed in 1991 in the Varanasi district court for the restoration of the ancient Temple at the site where the Gyanvapi Mosque currently stands.

Besides the Ayodhya Section 5 also exempts any place of worship that is an ancient and historical monument or an archaeological site, or is covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958-a suit that has been finally settled or disposed off or any dispute that has been settled by parties or conversion of any place that took place by acquiescence before the Act commenced.

The 1991 enactment:

The Place of Worship (Special Provisions) Act was passed by Parliament and enacted into a law in 1991 during the Ram Janmabhoomi movement. The Act was brought in by the P V Narasimha Rao led Congress government. While introducing the Bill in Parliament the then home minister, S B Chavan said, " it is considered necessary to adopt these measures in view of the controversies arising from time to time with regard to 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."

Challenge:

There are two petitions challenging the validity of the Act and both are pending in the Supreme Court.

One petition has been filed by the Lucknow-based trust Vishwa Bhadra Pujari Purohit Mahasangh along with followers of Sanatan Vedic Religion, another has been moved by advocate Ashwini Upadhyay.

The petitioners challenged the Act on the ground that it bars judicial review, which is a basic feature of the Constitution. It imposes an arbitrary irrational retrospective cut-off date. It also abridges the right to religion of Hindus, Jains, Buddhists and Sikhs.

"The impugned Act has barred the right and remedy against encroachment made on religious property of Hindus exercising might of power by followers of another faith," says the petition filed by Vishwa Bhadra Pujari Purohit Mahasangh.

What the Supreme Court said:

While reliving the Ayodhya verdict in 2019, the Supreme Court said that the Act manifests the secular values of the Constitutions and strictly prohibits retrogression.

"In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered," the court said.

"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 its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic structure of the Constitution," the Supreme Court also said.