Sambhal Violence: Litigations Seeking 'Surveys' Disregard the Law

Fidelity to the Places of Worship Act is essential to prevent the weaponisation of historical grievances.

A vehicle in flames after violence erupted during the second survey of the Jama Masjid in Sambhal.

(Photo: PTI)

The Places of Worship Act (1991) was brought about to prohibit the conversion of any place of worship and maintain its religious character as it existed on 15 August 1947. The Act has been the central theme of controversy since the last decade. District courts have passed numerous orders allowing surveys of religious places (mosques) based on the claim that there existed another religious structure (temple) before.

On 18 November, the civil court in Uttar Pradesh’s Sambhal district ordered a survey of the Shahi Jama Masjid. The order was passed on a petition that claimed that the mosque was built on the site of a temple.

The report of the survey has to be filed before the court on 29 November. Two surveys have been done.  

After M Siddiq (D) vs Mahant Suresh Das (the Ayodhya-Babri judgment), there have been multiple instances in which the origin of religious structures has been the subject matter of litigation. Some are pending before various courts, like the Gyanvapi mosque case in Varanasi, the Shahi Idgah in Mathura, and the Kamal-Maula Mosque in Madhya Pradesh.  

If we strictly go by the law, such a process is barred under the Places of Worship Act. Now, though the validity of the Act itself is in question, it seems that even before the matter is decided upon, it is already being thrown into cold storage.

There is a clear statutory mandate. Recent litigations seeking surveys with respect to the 'true nature' of places of worship not only disregard the law but also threaten the constitutional commitment to secularism and communal harmony.

In the Sambhal case, the civil court directed an advocate commissioner, Ramesh Chand Raghav, to survey the Shahi Jama Masjid at Chandausi. The survey of the mosque reportedly began in the evening, just hours after the court's order.

It is strange that such a survey was ordered on the very first day of the hearing, i.e., without even considering the grounds of the suit's maintainability. The order was implemented before other parties had an opportunity to challenge it.

The order was passed on a suit filed by eight plaintiffs, who claimed that the mosque in question was built in 1526, after the demolition of a temple that stood there.  

“It would felicitate the court to adjudicate the suit if a report about the situation (at the site in question) is submitted (before the court). Therefore, in the interest of justice, application 8C is accepted with the condition that at the time of the survey, the appointed advocate commissioner should get photography and videography done on the spot of the entire proceeding,” the court's order read while seeking a report by 29 November.

On 24 November, clashes broke out after the court-appointed advocate commissioner and six members of his team entered the mosque for a second survey around 7 am. As per the reports, the death toll in the clashes went up to six, including a 19-year-old boy who passed away due to gunshot wounds.

During the Gyanvapi case, Justice DY Chandrachud observed that “the ascertainment of the religious character of the place of worship is not expressly barred,” that is, while noting that there could be no conversion of the place, he said that the structure’s “original character” could always be determined. He later clarified that it was just a dialogue and not an opinion of the court.

The said observation has opened a floodgate of litigations, and although it was just a dialogue, it still prima facie states that the validity of a religious monument can be determined even if it is barred by the Act. 

As Ajoy Karpuram rightly argues, "The SC permitting a survey of Gyanvapi mosque may contradict its views on contested places of worship in the 2019 Ayodhya Judgment."

The Supreme Court bench that decided the Ayodhya dispute in 2019 observed that 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.” 

“The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution. There is a purpose underlying the enactment of the Places of Worship Act. The law speaks to our history and to the future of the nation. Cognisant as we are of our history and of the need for the nation to confront it, independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. 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.”

Supreme Court in the Ayodhya-Babri judgment

In addition to this, the Supreme Court also criticised the observations made by Justice DV Sharma, who was part of the Allahabad High Court bench that delivered the Ayodhya-Babri judgment in 2010. Justice DV Sharma had observed: 

“1 (c). Section 9 is very wide. In absence of any ecclesiastical Courts any religious dispute is cognisable, except in very rare cases where the declaration sought may be what constitutes religious rite. Places of Worship (Special Provisions) Act, 1991 does not debar those cases where declaration is sought for a period prior to the Act came into force or for enforcement of right which was recognised before coming into force of the Act.” 

With respect to the above-mentioned observation, the Supreme Court had observed, “The only exception in the proviso to sub-section (2) is where a suit, appeal or proceeding is instituted on the ground that the conversion of the religious character of a place of worship had taken place after 15 August 1947 and such an action was pending at the commencement of the Places of Worship Act. Clearly, in the face of the statutory mandate, the exception which has been carved out by Justice DV Sharma runs contrary to the terms of the legislation and is therefore erroneous.”

Despite this, the growing acceptance of surveys to determine the religious character of places of worship poses significant risks to the foundational principles of the Places of Worship Act.

In the aftermath of the Gyanvapi case, a surge of challenges questioning the religious identity of various sites has emerged. For instance, the Mathura District Court has entertained a petition alleging the presence of Hindu ‘artefacts’ at the Shahi Idgah Masjid. Similarly, in Karnataka, the Narendra Modi Vichar Manch has sought permission to conduct prayers inside a mosque in Srirangapatna, asserting it was constructed over a Hanuman temple during Tipu Sultan’s rule.

These cases, among others, frequently rely on 'surveys', thereby undermining the clarity and authority of the Supreme Court’s findings in the Ayodhya judgment. 

A delicate balance was struck in the Ayodhya judgment. The court unequivocally stated that the Act reflects the commitment of India to the equality of all religions, and this must not be lost amidst local court orders permitting surveys and entertaining such suits without addressing their maintainability at the threshold.

As the Supreme Court prepares to decide on the constitutional validity of the Act, it must also address the broader implications of these litigations on the rule of law and religious harmony.

Judicial restraint and fidelity to the principles enshrined in the Places of Worship Act are essential to ensure that historical grievances are not weaponised to disrupt the social fabric of the nation.

Until the Supreme Court intervenes decisively, the Act’s objectives and the secular character of the nation face a precarious and uncertain future. 

(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. He writes on various legal developments. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)