Decoding the 1991 Act at the heart of the Gyanvapi mosque dispute
NEW DELHI: A Varanasi court ordered survey of the Gyanvapi mosque, based on a plea that claims the existence of idols of Hindu deities inside the mosque located next to the Kashi Vishwanath Temple in Varanasi, puts the spotlight on a three-page legislation – The Places of Worship Act, 1991.
The law was invoked by Anjuman Intezamia Masjid Committee, which manages the Gyanvapi mosque, before the Supreme Court to demand a cessation of the ongoing survey. The mosque management committee, in its appeal against the April 21 order of the Allahabad high court allowing the survey of the mosque premises, implored the top court to rely upon the 1991 Act. The petition asked for stopping the day-to-day survey of a mosque to inspect, conduct videography, and collect evidence regarding the existence of Hindu deities inside the mosque.
On Tuesday, the Supreme Court asked the Varanasi district magistrate to protect an area on the premises where the Hindu side claimed a “Shivling” was recovered, but allowed Muslims to offer namaz without any restrictions. It posted the matter for hearing on Thursday.
Hyderabad MP and AIMIM chief Asaduddin Owaisi has called the Gyanvapi survey order a blatant violation of the Places of Worship Act while senior Congress leader P Chidambaram also said that the 1991 law forbids such orders. But those in favour of the survey cite an exemption provision in the same law to maintain that “ancient” structures like Gyanvapi mosque and Kashi Vishwanath temple will not come under the ambit of the 1991 legislation. As the Places of Worship Act takes centre stage in the debate, the law, its purpose and its scope postulate a deep dive.
Political and legal history
When the Ram Janmabhoomi movement was gathering momentum in the late 1980s and early 1990s, the PV Narasimha Rao-led Congress regime envisaged a law to lock the position or “religious identity” of any house of worship as it existed on August 15, 1947. The Congress promised such legislation in its manifesto for the 1991 Lok Sabha elections. The President’s address to Parliament also contained a reference to it.
“We see this Bill as a measure to provide and develop our glorious traditions of love, peace and harmony,” the then Union home minister, SB Chavan, said in the Lok Sabha in August 1991 while moving the Bill. He added that the proposed law was necessary in view of the controversies arising with regard to conversion of places of worship which tend to vitiate the communal atmosphere.
The Bharatiya Janata Party (BJP), which was the main Opposition party at that time, registered its strong protest to the enactment. The BJP leadership criticised the Bill as another example of the “pseudo secularism” being practised in the country, and yet another attempt by the Congress government to appease the minorities.
In Parliament, the BJP also questioned Parliament’s legislative competence to enact the law as it pertained to places of pilgrimages or burial grounds, which were under the State List. However, the Union government said it could make use of its residuary power under Entry 97 of the Union List to enact this law.
On September 18, 1991, the government notified the Act with an objective to pre-empt fresh claims by any community about the previous designation of any place of worship and the consequent efforts to reclaim structures or land on which they stood. The law was made operational with effect from July 11, 1991. The central government, at that time, said that the law would aid in the longterm preservation of peaceful coexistence of communities.
The Places of Worship Act bears the title: “An Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947, and for matters connected therewith or incidental thereto.”
Section 3 of the Act imposes a prohibition on individuals and groups of people against converting, in full or part, of a place of worship of any religious denomination into a place of worship of a different religious denomination — or even a different segment of same religious denomination. The heart of the legislation, Section 4 of the Act, declares that a place of worship’s religious character “shall continue to be the same as it existed” as it was on August 15, 1947. The second clause of this provision stamps out all pending and future litigation demanding a change in the religious character of a place. Section 4(2) lays down that any suit or legal proceeding with respect to the conversion of the religious character of any place of worship existing on August 15, 1947, pending before any court, shall abate and no fresh suit or legal proceedings shall be instituted. The proviso to this section saves those litigation which claim conversion of a place of worship after August 15, 1947.
Another proviso to Section 4 lays down that the injunction of the law shall not operate with respect to any place of worship which is an ancient and historical monument, or an archaeological site, or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or any other law for the time being in force. As per the 1958 Act, an “ancient monument” is “any structure, erection or monument, or any tumulus or place of interment, or any cave, rocksculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years”.
Offences under the 1991 Act are punishable with a jail term which may extend up to three years as well as a monetary penalty. Under Section 6 of the Act, even making an attempt to change any place of worship, abetting it, or being party to a conspiracy to do so would invite a jail term. Offences under the Places of Worship Act are also included in Section 8 of the Representation of People Act, 1951 for the purpose of disqualifying candidates in elections who are sentenced for two years or more under the 1991 law.
Ayodhya case and 1991 Act
The legislation specifically put the Ram Janmabhoomi-Babri Masjid dispute outside its purview, considering the fact that the title dispute was already pending before the Allahabad high court and both Hindu and Muslim sides were appearing in the case.
Section 5 of the Act states that “nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janmabhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating to the said place or place of worship.”
As the law created an exception for the Ayodhya case, the Allahabad high court went ahead and delivered its verdict in September 2010 on a bunch of five suits filed in the matter between 1950 and 1989. The high court favoured a three-way division of the disputed 2.77 acre of land between the Hindu parties, the Muslim parties, and the Nirmohi Akhara.
The Places of Worship Act of 1991 was brought at a time when the Ayodhya movement – led by the Vishwa Hindu Parishad (VHP) and backed by the Rashtriya Swayamsevak Sangh and the BJP – was at its peak. Only a year later, the Babri Masjid was illegally demolished by the kar sevaks (volunteers) who gathered in Ayodhya at a call given by VHP, marking a decisive change in the national politics.
Ayodhya verdict and the Places of Worship Act
A five-judge bench of the Supreme Court ruled in favour of the Hindu side in its verdict delivered in November 2019. Judges on the bench, then CJI Ranjan Gogoi, justices SA Bobde, Dhanananjaya Y Chandrachud, Ashok Bhushan and SA Nazeer, pronounced a unanimous decision, paving the way for reclamation of the land by Hindus for constructing a temple in Ayodhya. At the same time, the Ayodhya judgment underscored the significance of the Places of Worship Act, as it encompassed a message against attempts to alter the religious nature of a place of worship and about “non-retrogression” and emphasised that “historical wrongs cannot be remedied by the people taking the law in their own hands”.
Defining the contours of the Places of Worship Act, the top court held that the law prohibits the conversion of any place of worship and in doing so, it speaks to the future by mandating that the character of a place of public worship shall be preserved and not be altered. The Ayodhya judgment also set aside the Allahabad high court’s view that all kinds of religious disputes could be raised in a court of law if the dispute was about a declaration or about a right which was recognised before the enforcement of the Places of Worship Act, i.e July 11, 1991.
“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,” the fivejudge bench held.
The law protects and secures the fundamental values of the Constitution, said the apex court, adding that the Act is 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 law addresses itself to the State as much as to every citizen. 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 operationalised its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution,” read the Ayodhya judgment.
According to the Ayodhya judgment, the Places of Worship Act is a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. When a right is defined as a basic feature of the Constitution or an extension of it, it affords the protection of the constitutional court, like all fundamental rights.
After the top court ruling
In June 2020, Lucknow-based Vishwa Bhadra Pujari Purohit Mahasangh filed a petition in the Supreme Court, through advocate Vishnu Shankar Jain, to challenge the validity of the 1991 Act. The petition urged the top court to declare Section 4 of the 1991 Act ultra vires and unconstitutional, arguing the law is a hindrance in the path of legally reclaiming disputed religious structures, such as Kashi and Mathura.
“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,” said the plea. Soon, Jamiat-Ulama-I-Hind, an Islamic body of clergies, moved a plea in the Supreme Court to oppose the petition. In the intervention application, the Jamiat-Ulama-I-Hind expressed fears the petition poses a threat to the secular fabric of the country. The application refers to the Ayodhya dispute, suggesting that its memory would lead the Muslim community to fear for their places of worship even if just a notice is issued in this regard.
On July 10, 2020, the Supreme Court took up the petition for a hearing but a request for adjourning the case was moved on behalf of the petitioner’s lawyer. The case was adjourned by four weeks and it is yet to come up before the court again.
The second petition challenging the validity of the 1991 Act was filed by BJP leader Subramanian Swamy in June 2020. Swamy, in his plea, said that the Places of Worship Act is a barrier, depriving his right to pray at a place where due to foreign oppression and invasion of a Hindu temple of a certain significance according to faith and belief of Hindus was/is converted, inviting the court to interpret it in lieu of the welldocumented history and review in checking the constitutional validity of such Act. On March 26, 2021, the Supreme Court admitted Swamy’s petition for hearing, and sought a response from the Union government.
BJP leader and advocate Ashwini Upadhyay also filed a petition against the 1991 Act in October 2020. His petition alleged that the legislation is biased against Hindus, Buddhists, Sikhs and Jains as it curbed their rights to seek restoration of their holy places of worship destroyed before “an arbitrarily fixed cut-off date” through legal proceedings, thus impeding the injured community to take recourse to availing their fundamental right to approach constitutional courts in writ jurisdiction. The Act also brazenly infringes on the rights of Hindus, Jains, Buddhists and Sikhs to restore, manage, maintain and administer the places of worship and pilgrimage guaranteed under Article 26 of the Constitution, contended Upadhyay. The Supreme Court, on March 12, issued a notice to the Union government on this petition too. However, Upadhyay’s petition has also not been listed since.
The Gyanvapi mosque case has all the imprints of the Ram Janmabhoomi-Babri Masjid dispute, and the matter is before the highest court of the land, arising from a civil suit yet again. One of the arguments sought to be raised by those in favour of reclamation pertains to an exemption to such places of worship which are more than a hundred years old and can be subjected to an archaeological survey.
The case involves intricate interpretations of laws juxtaposed with constitutional rights of two communities to practice their faith. More importantly, what is at stake is the efficacy of an existing law, which the five-judge bench in 2019 described as a manifestation of the nation’s commitment to secularism under the Constitution.