Places of Worship (Special Provisions) Act, 1991- Unconstitutional!
Author: Adv. Himanjali Gautam is an Advocate at the Supreme Court of India
Founding-Partner at Chambers of Himanjali Gautam, Ex-President- Law Centre 2, Faculty of Law DU, Columnist, Public Speaker and TV Personality.
A recent petition in Supreme Court challenging the Places of Worship (Special Provisions) Act (PWA), 1991 is a devious strike at the Muslim community which intends to detach them as a completely different category from all other religious groups. On March 12, the Supreme Court requested a response from the Centre on another petition, fuelling the controversy over the 30-year-old law that prohibits the dismantling of religious structures erected prior to August 15, 1947, in contravention to this requested response Wasif Hasan filed a plea against the same which highlighted the original petition, submitted by lawyer Ashwini Kumar Upadhyay, seeks to “reopen the Ram Janmabhoomi dispute by criticizing the exception engraved out there under the 1991 Act.” The Supreme Court’s ruling to reconsider the law, based on Upadhyay’s petition, has been interpreted as just a gunshot in the arm for lawsuits brought in Varanasi, Mathura, and Lucknow. Hasan in this petition alleged Upadhyay for attempting to mentally divide people based on religion. According to the petition, the law legalizes the activities of previous invaders who destroyed places of worship. It is puzzling how the law will exempt Ram’s birthplace but not Krishna’s.
It was not the first time the act on Places of Worship has been questioned in court. Advocate Vishnu Jain in June 2020 initiated a petition challenging the PWA on behalf of four Sanatan Dharam supporters. His petition, however, has yet to be heard by the Supreme Court. Jain, who represents a number of petitioners, including Sudarshan TV News founder Suresh Chavhanke, has filed a number of suits in district courts with almost the same intention of reclaiming places of worship. Chavhanke, who actively broadcasts false information on his channels, several of which are of a communal nature, was indeed speaking in for Maa Ganga (the river Ganga) in his petitions to have the Gyanvapi Mosque removed and Asthan Adi Visheshwar restored. Goddess Maa Shringar Gauri has instituted a distinct but closely related suit in Varanasi’s civil court, represented by lawyer Ranjana Agnihotri. Jain has also initiated analogous petitions to have Shahi Idgah in Mathura, which is adjacent to the Shri Krishna temple complex, and the Teeley Wali Masjid in Lucknow demolished. Any order that extends or weakens the 1991 law at a place of worship is likely to have an effect on the outcome of this kind of proceedings.
Gist of the law
The law, enacted in 1991 by the P V Narasimha Rao-led Congress government, aims to restore the “religious character” of places of worship to what it was in 1947 — with religious expression setting aside the exception of the Ram Janmabhoomi-Babri Masjid dispute, which was already in court. The legislation was passed at the pinnacle of the Ram Mandir movement, precisely the year before the Babri Masjid was demolished. When introducing the legislation, then-Home Minister S B Chavan mentioned in Parliament that it has been implemented to reduce communal violence.
Statutory provisions of the act
The legislation is defined as “an act prohibiting the altering of the place of worship and providing for the preservation of the religious character of the place of worship” as it came into existence on the 15th August 1947, and for connected purposes with or incidental thereto.”
Sections 3 and Section 4 of the act state that the religious character of an area of worship must remain identical as it was on August 15, 1947, in which no one shall alter any place of worship of any religious denomination into one special denomination or section. Whereas, Section 4(2) states that all lawsuits, petitions, or other proceedings pending on August 15, 1947, involving transforming the character of a place of worship will stay when the Act takes effect, and no new proceedings can be instituted.
However, if the change of status occurred after the slashed date of August 15, 1947, legal proceedings may be commenced with respect to the conversion of the religious character of almost any place of worship after the Act’s implementation.
According to Article 5 of the Act, “This legislation does not extend to any law enforcement, lawsuit, or other proceeding relating to the location or place of worship known as Ram Janma Bhoomi-Babri Masjid in the state of Ayodhya, Uttar Pradesh.”
Aside from the Ayodhya controversy, the rule appeared to be like this-
Any place of worship that is a historical and ancient monument or sacred place, or that is covered by the 1958 statute on ancient temples and archaeological sites and remains;
A case that has been resolved or abandoned in timely manner;
Conflicts settled by the parties or transformation of a location that existed by consensus prior to the enactment of the statute.
Anyone contravening the prohibition on converting the status of a place of worship is liable to be imprisoned for up to three years, and a relevant fine. Hence, those abetting on participating in a criminal conspiracy to commit this offence will also get the same punishment.
Supreme Court’s opinion
In the 2019 Ayodhya decision, the Constitutional Bench, headed by former Chief Justice of India Ranjan Gogoi, quoted the law as revealing secular constitutional principles and specifically prohibiting embedded systems.
When Parliament on 15 August 1947 guaranteed the preservation of the religious character of public places of worship, and against the conversion of public places of worship, it concluded that freedom from colonial rule was a constitutional basis for repairing the wrongs. Assuring each religious community that its places of worship will be preserved and their character will not change. The law is addressed to every citizen of the state and the nation. Its standards bind those who run the affairs of the nation at every level. These standards implement the fundamental obligations of Article 51 and therefore constitute a positive mandate for every citizen. The court stated that by declaring the law, the state-enforced a constitutional obligation and undertook its constitutional obligations to maintain the freedom between all faiths and secularities is a core pillar of the constitution
Why is the law being challenged?
In Delhi, BJP leader and lawyer Ashwani Upadhyay has challenged the law that it violates secularism. “He also argued that the August 15, 1947 deadline was “arbitrary, irrational and retrospective” and prohibited Hindus, Jains, Buddhists and Sikhs from going to court to “claim” their “invasion” places. And “intervened” by “radical barbaric invaders”.”
The BJP had already rejected the law when it was argued that the Centre did not have the authority to pass the law on “pilgrimages” or “burial sites”, which are on the state’s list. However, the government had said that it could use its remaining power under 97 of the Union List to enforce this law. Entry 97 gives the Centre the remaining powers to legislate on matters not included in any of the three lists.
Criticism of the law is that the deadline is the date of independence, which means that the status quo established by the colonial power is considered final.
There are several international conventions on cultural and religious heritage that India has signed. Therefore, the Centre is bound to act in accordance with the conventions, i.e.-
The Fourth Geneva Convention of 1949 strengthened the protection of places of worship that represent the cultural and spiritual heritage of the people.
The laws of the United Nations and UNESCO.
Hague Convention 1954 for the protection of cultural property in the event of armed conflict
1972 World Heritage Convention
Convention for the protection of the architectural heritage of Europe
European Convention for the Protection of Archaeological Heritage 1969
European Landscape Convention 2000
European Convention for the Diversity and Conservation of Cultural Expressions of 2005.
It was declared under the guise of “public order”, a case for the state [Entry-1, List-2, Appendix-,]. Similarly, “pilgrimage, excluding pilgrimages to places outside India” is also a government issue [Entry-7, List-II, Appendix-7]. Therefore, the Centre does not have the legislative capacity to legislate to contest elections.
The provisions fought cannot be applied retroactively, and interaction cannot be prohibited in the event of ongoing or arising litigation. Neither the Centre can close the doors for the injured nor can it withdraw the powers of the Courts of First Instance, the Court of Appeal and the Constitutional Court under Article 226 or 32. The Maxim Ubi jus ibi remedium has been thwarted by the criminal law as pending lawsuits and various other proceedings pending for which the cause of action has arisen and which causes harm, the legal remedy of the injured party to settle the disputes has been abolished by the Court. Justice, which is contrary to the term, violates justice and the “rule of law”.
The Supreme Court’s opinion may be affirmative, but the impact deepens and may undermine our efforts to convince the general public, including Muslims, of the purity and virtue of the Ayodhya verdict. Essentially, those who oppose accepting an alternative site for a mosque will steal a march against those of us who support reconciliation. What’s worse, the country will again be stuck in a spiral of conflict and lack of trust that no god wants to inflame on us. Continuing to challenge the law would reveal old flaws and have a detrimental effect on Ayodhya’s judgment journey to justice. The passage opened by the final declaration is wide and endless. Even though we must balance ourselves in order to stabilize the ship of state, we must not deviate from the Supreme Court. Despite the frequent disappointment and some indicators that the majority’s viewpoint is being considered, the Supreme Court is somewhere in the vicinity of the rule of law.