The Expectation, the Hope and the Supreme Court

Ex-CJI Chandrachud’s reading of the Places of Worship Act in Gyanvapi case has brought much confusion to the law.

Devotees leave after offering prayers at the Shahi Jama Masjid amid tight security in Sambhal.

(Photo: PTI)

“Peace and harmony must be maintained”, said CJI Sanjiv Khanna on 29 November while putting a halt to the proceedings in Sambhal’s Shahi Jama Masjid case, a benign statement underscoring what all had happened.

On 24 November, violent clashes broke out between the administration and locals after the civil judge (senior division) of Sambhal passed an ex parte order ordering the survey of the Shahi Jama Masjid after claims of it being a Harihar temple were made. It was claimed that the Mughal emperor Babar destroyed the temple premises in 1529 and built a mosque in its place. 

Meanwhile, a civil judge in Ajmer issued notices to the Ministry of Minority Affairs, Archaeological Survey of India, and the Dargah Committee after it was claimed that the centuries-old dargah had been built on a Shiva temple. The book Ajmer: Historical and Descriptive written by Har Bilas Sarda (one of the pioneers of Hindu nationalism) in 1911 was cited in order to prove the existence of a temple beneath the shrine. 

The Places of Worship Act (Special Provisions) Act, 1991 (hereinafter Act) concretises the religious character of any place of worship as it existed on 15 August 1947. It prohibits the conversion of any place of worship through criminal sanction by way of Section 3 read with Section 6 of the Act.

Even an attempt or abetment to convert any place of worship is punishable under Section 6.  

The Minister of Home Affairs at the time, SB Chavan, while moving the Bill had linked conversion with a rise in religious communalism. Ram Vilas Paswan had similarly observed that conversion of religious places pushes the country “towards savagery” and demanded that no loopholes be left in the law. 

The courts have deviated from the established understanding of the law, starting with the Gyanvapi case, in which the petitioners argued that till the year 1993, they exercised their right to worship at the disputed place, and only after 1993, this right was restricted to worship once a year. Therefore, they possessed the right to worship even after 15 August 1947.

The Allahabad High Court observed that the petition did not seek to alter the character of the mosque. Since the demand was confined to the petitioners’ right to worship, an investigation was not barred by the relevant provisions of the Act.

The Supreme Court followed the ruling of the Allahabad High Court. The former Chief Justice of India DY Chandrachud read “determination” of the nature of the place as separate from “alteration” or “conversion” of the status quo. He observed, “The Act says you can’t alter or convert the nature of the place. They’re not seeking conversion of the place. The question is what the status of place is as on August 15, 1947.” The permission to undertake a survey at Gyanvapi opened a Pandora's box, as seen in the Shahi Eidgah case, among others.

What the courts in India have been doing recently goes against the basic understanding of property law (the courts, after all, are bound by law and not faith) – that a claim of wrongful possession is entertained only on behalf of the title holder. The intention behind the 1991 Act was to stop any further claims of wrongful possession regarding the places of worship. The only exception chalked out was the then-pending Babri Masjid dispute under Section 5 of the Act. 

The former CJI’s reading of the Act in Gyanvapi brought much confusion to the law.

First, any act of conversion (including its attempt and abetment) can now be routed through the judicial process. If a legal claim can easily be made against the status quo, what is the use of employing violence? In other instances, if the violence can be routed through executive action, why engage in it personally? 

Second, by de-linking the “determination of facts” (allowing surveys) from “conversion”, the understanding of “prohibition” is diluted. If the survey establishes facts contrary to the prevailing practice (of which there would be a high propensity), would this not lead to a conversion of the place? If that could be allowed, why was Babri Masjid included as the only exception? Could the exception be expanded to include more places of worship as well?  

Third, we do not know what kind of claims challenging the status quo of a religious place are allowed and what is not allowed. It is this third aspect that takes us to Sambhal and Ajmer.  

While the former CJI read “continuing practice till 1993” as the basis of a potential claim in Gyanvapi, the judges in the district court did not find any reason to even look at the practice. They took historical claims as the basis to allow the determination of the facts.  

The Supreme Court’s order in Gyanvapi was wrong. It went against the express language and the intended object of the Act. Nevertheless, the understanding that the district courts have adopted further violates the spirit of the legislation.  

First, the district courts’ understanding does not align with the interpretation of the Supreme Court where practice in addition to history was found fundamental to make any claim.  

Second, the district courts have limited authority to interpret the law. Therefore, taking a new interpretation would only amount to violating the understanding established by the Supreme Court. This stands irrespective of the fact that the understanding of the Supreme Court was also erroneous. 

Third, this new interpretation would also be in violation of the express provisions of the Act, which the higher courts of the country could avoid through their interpretations, but the subordinate courts cannot. 

This takes us to pose more fundamental questions.

Could the district courts violate the express language of law? What should be the outcome of such decisions? What are the boundaries of judicial propriety that the judges of the lower courts must adhere to? 

The Supreme Court’s directive to the district court under the current CJI to not proceed further in the matter; to keep the report of the Advocate Commissioner in sealed cover; and, to proceed for community mediation in the Sambhal district is a welcoming step. The mosque committee has been asked to move the Allahabad High Court, which again is an incremental gain in the ongoing dispute.  

The expectation of the community is that the Gyanvapi is not repeated. It is this expectation that keeps the hope of the minorities alive. 

(Nizamuddin Ahmad Siddiqui teaches at Jindal Global Law School. Abdul Hannan Qazi is a student of law at Jamia Millia Islamia. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)