Context

• The Places of Worship (Special Provisions) Act, 1991 has been challenged in the Supreme Court on the ground that it bars judicial review, which is a basic feature of the Constitution.
• The Committee of Management of Anjuman Intezamia Masjid, Varanasi has challenged in Supreme Court the videography survey ordered by a local court of the Maa Shringar Gauri Sthal in the Kashi Vishwanath temple-Gyanvapi mosque complex.
• The Masjid Committee has appealed that an earlier suit filed in 1991 by some devotees alleging that the Gyanvapi mosque was built after demolishing a temple had been stayed by the HC and the present proceedings which were instituted in 2021, were an attempt to get around the stay.

About Places of Worship (Special Provisions) Act, 1991 Act

• Nature of place of worship: The Act declares that the religious character of a place of worship “shall continue to be the same as it existed” during independence from British rule. It signifies two things as follows:
• No Alteration (Section 3): The Act prohibits conversion of any place of worship, 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 the same religious denomination.
• Specific Date (Section 4(1)): The Act specifies 15th day of August, 1947, as cutoff date to maintain status quo of any place of worship.
• Nullifies suit or appeal (Section 4(2)): The Act also mentions 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.
• Exception (Section 5): These provisions of the Act will not apply to:
  • Ancient and historical monuments and archaeological sites and remains that are covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
  • A suit that has been finally settled or disposed of; and any dispute that has been settled by the parties or conversion of any place that took place by acquiescence before the Act commenced.
  • The Act also does not apply to the place of worship i.e., Ram Janmabhoomi-Babri Masjid in Ayodhya and to any suit, appeal or proceeding relating to it.

Likely Consequences 

• If the survey finds the existence of a Hindu temple structure inside the Gyanvapi compound, which would naturally be more than 100 years old, it could be declared an ancient monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958, and therefore, exempt from the Places of Worship Act.
  • As per the Act, an “ancient monument” is “any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years.”

Motive behind enacting Places of Worship (Special Provisions) Act, 1991 Act

• The Act was brought by the Congress government with Prime Minister P V Narasimha Rao at a time when the Ram temple movement was at its peak. The Babri Masjid was still standing, but L K Advani’s rath yatra, his arrest in Bihar, and the firing on kar sevaks in Uttar Pradesh had raised communal tensions.
• The then Home Minister S B Chavan while moving respective Bill in Parliament had observed that such measures are necessary 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.
• The main opposition BJP had opposed the Bill while it was moved. Opposition raised concerns that maintenance of status quo as in 1947 in respect of religious places would mean the preservation of communal tensions for the coming generations.

Supreme Court Observation of the Act

• Legislative Instrument: The Court held the Act as a legislative intervention which imposed a non-derogable obligation towards enforcing commitment to secularism which is one of the basic features of the Indian Constitution.
• Constitution obligation: The State, has by enacting the law, enforced a constitutional commitment and operationalized its constitutional obligations to uphold the equality of all religions.
• Guarantee to all: The Act has provided guarantee to every religious community for the preservation of their places of worship as they existed on 15 August 1947 that furnishes a constitutional basis for healing the injustices of the past colonial rule.

Why plea filed to revisit the Act?

A plea to revisit The Places of Worship Act, 1991, has been filed on the following grounds:

• Arbitrariness: The Act “has created arbitrary irrational retrospective cutoff date” of 15 August 1947 to determine religious character of the denomination in a civilizational state, like India which holds status quo determined by a colonial power as final.
• No remedy: The Act has barred the remedies against illegal encroachment on the places of worship and pilgrimages and now Hindus, Jains, Buddhists, Sikhs cannot file suit or approach Courts under Article 32 (Writ in Supreme Court) or Article 226 (Writ in High Court).
• Beyond legislative jurisdiction: The Act is “unconstitutional and beyond Parliament’s law making power” as it has “frustrated” the principle of law ‘ubi jus ibi remedium (where there is a right, there is a remedy), “thus violating the concept of justice and Rule of Law, which is core of Article 14”.
• Impinge Fundamental Rights: Article 13(2) also prohibits State from making any law which takes away or abridges fundamental rights conferred under Part-III of the Constitution and thus the petition has questioned how any law can bar the right to seek judicial review of a grievance.
• Against religious right: Act violates Article 25 of the Indian Constitution — Freedom of conscience and free profession, practice and propagation of religion.

Concerns of revisiting the Act

• Mistrust: Critics argue that revisiting the Act will breed lack of faith between different communities and may lead the nation into a spiral of conflict and filial piety (respect for elders) will entirely be replaced by paying for the “sins” of ancestors.
• Against liberal societal view: Modern-day liberal societies are for reasons of principle or pragmatics and fast becoming multi-ethnic and multi-cultural. Revisiting the Act may reverse our global image of pluralistic society.
• Minorities dismay: It will create fear in the minds of the Muslim community and will open floodgates of litigation against countless mosques in the country.

Road ahead

United Nations Alliance of Civilisations safeguards religious Sites in line with Universal Declaration of Human Rights and supports Member States in their efforts to ensure that religious sites are safe. This Plan is a global call to rally around the most basic tenets of humanity and solidarity and to reaffirm the sanctity of all religious sites and the safety of all worshippers. More so, India’s own secular credentials enshrined in Constitution gives us light in preserving our pluralistic ethos and upholding rule of law.