Print edition : July 31, 2020

A January 2019 photograph showing construction work in full swing near the Kashi Vishawanath-Gyanvapi mosque complex at Varanasi for a corridor connecting the temple to the river. The levelling of houses, shops and small temples for the project has given rise to fears that the mosque may become a possible target for demolition. Photo: Rajeev Bhatt

A group of Hindu sants has filed a petition in the Supreme Court seeking the abrogation of a legal provision preserving the status of each place of worship belonging to any religion as it existed on August 15, 1947.

It is early days but a silent, unannounced build-up has started for the “liberation” of the Hindu places of worship in Mathura and Varanasi that were allegedly razed in medieval times to raise mosques in their place. Obviously encouraged by the Ayodhya verdict, a group of Hindu sants is now taking the litigation route seeking abrogation of a section of the Places of Worship (Special Provisions) Act, 1991, that preserves the status of each place of worship of any religion as it existed on August 15, 1947.

The Act was passed at the height of the demand for the construction of a Ram temple at the site of the Babri Masjid. Its aim was to quash all debate around the mosques in Varanasi and Mathura at a time when the Hindutva brigade was chanting the slogan “Ayodhya to sirf jhanki hai, Kasi, Mathura baqi hai” (Ayodhya is a mere teaser, Kasi and Mathura are still left). The position of Hindu sants who are opposed to this provision is based on a view of history that stresses the role of Muslim invaders as iconoclasts and desecrators of Hindu places of worship. They have approached the Supreme Court for correcting the perceived injustice.

This position flies in the face of the 2019 Ayodhya verdict itself, which stated that “law cannot be used as a device to reach back in time and provide a legal remedy to every person who disagrees with the course which history has taken”. But that has not dissuaded the sants from calling for a fresh look at the Act.

The Vishwa Bhadra Pujari Purohit Mahasangh, based in Lucknow, filed a petition in the Supreme Court through Advocate Vishnu Jain in June, seeking directions to declare Section 4 of the 1991 Act as ultra vires. The petitioners insisted that the remarks made in the Ayodhya verdict were mere observations without any judicial force as the Places of Worship Act was not under challenge in that case.

“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,” the petition contended.

The sants have alleged that the Act prevents Hindus from seeking redress for their grievances in civil courts and from invoking the jurisdiction of High Courts under Article 226 of the Constitution. They allege that Hindus are discriminated against because they are not able to have the religious character of endowments, temples and mutts restored if these were encroached upon before August 15, 1947.

“The Parliament by making an impugned provision has without resolution of dispute, through process of court, abated the suit and proceedings, which is per se unconstitutional and beyond its law-making power,” the petition said.

The 1991 law permits the maintenance of the “religious character” of holy structures in the form in which they existed when India got Independence on August 15, 1947. The law is not unidirectional. It prohibits conversion of any temple into a mosque, and vice versa.

The Jamiat Ulama-e-Hind has filed a plea that the court should not entertain the sants’ petition. Advocate-on-Record Ejaz Maqbool filed the plea on behalf of the Jamiat’s president, Arshad Madani. The plea stated: “At the outset this application is being filed to oppose the present writ petition, so that this court is pleased to not issue notice in the present petition. It is submitted that even issuance of notice in the present matter will create fear in the minds of the Muslim community with regard to their places of worship, especially in the aftermath of the Ayodhya dispute, and will destroy the secular fabric of the nation.”

The Jamiat plea said that the Mahasangh petition was based on the assumption that Section 4 of the Places of Worship Act, 1991, “validates the alleged illegal and barbarous action of invaders who had converted the Hindu places of worship by restricting rights of Hindus”. It pointed out that the sants’ petition sought to indirectly target places of worship that were at present of a Muslim character. The Jamiat also pointed out that the Places of Worship Act applied to all places of worship and was not limited to any one community.

It added that the Places of Worship (Special Provisions) Act was enacted to fulfil two purposes. First, it prohibits the conversion of any place of worship and in doing so speaks to the future by mandating that the character of a place of public worship shall not be altered. Second, the law seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on August 15, 1947. The Jamiat plea said that the court recognised these purposes in its recent judgment in M. Siddiq versus Suresh Das, popularly known as the Babri Masjid-Ram Janmabhoomi verdict, which noted that the Places of Worship (Special Provisions) Act, 1991, protected and secured the fundamental values of the Constitution.

“Ultimately this court concluded that the Places of Worship (Special Provisions) Act, 1991, imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. It was further observed that it was legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution,” the Jamiat stated.

It said the Places of Worship Act was intrinsically related to the obligations of a secular state and reflected India’s commitment to the equality of all religions.

Speaking to Frontline, Arshad Madani said: “After the Babri Masjid verdict, sectarian powers have felt emboldened. But they cannot be allowed to play with the intrinsic pluralist ethos of the nation. We have approached the Supreme Court to protect historic mosques, many of which could be on the wish list of bigoted elements. Already, there have been media reports of fresh activity in the vicinity of the Gyanvapi mosque in Varanasi with land around the mosque being levelled and smaller temples demolished to pave the way for a grand Kasi Viswanath temple. If not stopped today, these elements will not stop at anything. They have in the past laid claim to the Taj Mahal too.”

Madani felt the Mahasangh petition was part of a larger conspiracy to gradually lay claim to more Muslim places of worship and disturb communal harmony. “We got to know through Gulzar Ahmed Azmi, secretary, legal cell, about the move by the sadhus to approach the Supreme Court. He suggested we should oppose their petition immediately. Accordingly, advocates Shahid Nadeem and Akriti Chaubey proceeded to prepare the case following an online consultation with Advocate-on-Record Ejaz Maqbool, who then filed a plea seeking impleadment on behalf of the Jamiat. He requested the court not to admit the plea by the sadhus.”

Madani pointed out that social media was already being used to spread fake news about many other mosques allegedly built after demolishing temples. The Jamiat’s plea contended: “There is a list of numerous mosques which is doing the rounds on social media, alleging that the said mosques were built allegedly by destroying Hindu places of worship. Needless to say that if the present petition is entertained, it will open floodgates of litigation against countless mosques in the country and the religious divide from which the country is recovering in the aftermath of the Ayodhya dispute will only be widened.”

“The sadhus’ plea would damage the secular fabric of the country. We at the Jamiat have always strived to protect the secular principles enshrined in our Constitution. We cannot allow anybody to damage the basic character of the nation,” Madani said.