Communal conflict and riots swept through the country like a carpet of bombs, like a tsunami of hate, like a pandemic, in the aftermath of Babri Masjid demolition in 1992. In one of the most devastating chapters of Indian History, more than 2,000 people lost their lives.
But the conflict lived on – in courts of law, in the heart of politics, in fragments of a broken collective conscience and it transmuted and donned different garbs.
Even after a unanimous 1,045-page judgment was passed by a five-judge bench of the Supreme Court in 2019 allotting the 2.77 acres of disputed land to Ram Lalla Virajman (and ordering that five acres of land in a prominent area of Ayodhya be given to the Sunni Waqf Board to build another mosque), it would not abate.
In their verdict, the apex court might have attempted a fence-mending, balancing act of sorts, but what has followed since is a fresh frenzy of legal disputes over religious claims: some fairly new, some a frenetic re-visitation of older conflicts, including a barrage of petitions contesting the religious origins of ancient mosques in Varanasi and Mathura.
This even when The Places of Worship Act (1991) expressly bars conversion of any place of worship into anything different from the religious character of the place as it was on 15 August 1947 (with the exception of the Ayodhya dispute).
The objective of the Act was 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."
The Supreme Court had in its Ayodhya verdict reinforced the importance of this Act, stating that it "imposes a bar on the institution of fresh suits or legal proceedings" in such matters.
Elaborating on the same, the top court had gone on to say:
"The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component."
And yet secularism as a basic feature and non-retrogression as a foundational feature, as seemingly enforced by the Act and the Ayodhya judgment, appear to pale before the urgency with which religious and/or political petitioners have recently chimed in with suits seeking surveys and seals and in several cases even removal and reclamation of religious structures.
And the courts of law don't seem to have a problem with this.
The Gyanvapi Mosque Proceedings
In Varanasi, a civil judge recently ordered a survey of the Gyanvapi mosque premises.
Commenting on the court-ordered survey, former Allahabad High Court Chief Justice Govind Mathur had written in his article for The Quint:
"On the face of it, the legal course adopted appears to be in conflict with the provisions of the Act of 1991. The court before calling report should have decided the issue pertaining to the application of the Act aforesaid."
Justice Mathur had also written in his piece:
"The courts must be vigilant about the effect, affect, and consequences of their orders in such delicate matters. In the instant matter, there is no such urgency that may warrant a report of survey at this stage."
The same Varanasi court went on to order a sealing of the mosque after the plaintiffs claimed that a shivling had been found in the premises even before the commission had submitted their complete survey report.
The masjid committee wasn't even given a chance to respond to the claims, in defiance of one of the basic aspects of procedure in civil cases.
But the Supreme Court too refused to put an end to – or order a firm stay in – the Gyanvapi mosque matter.
The bench, headed by Justice DY Chandrachud, who was incidentally one of the five judges who had delivered the Ayodhya verdict, deemed it wiser to just take the matters out of the hands of the civil judge and order that a "senior and experienced" district judge may decide on the maintainability of the petition (under Order 7, Rule 11 of the CPC).
They did, however, subsume the lower court's order which could have led to a bar on entry of Muslim devotees and said that namaz may continue to be offered in the mosque with the district magistrate securing the spot where the alleged shivling is indicated to have been found.
But even though the top court's scope might be limited in the matter, considering that this was a civil suit and not a writ petition, the court appears to have missed an opportunity to send a message to not misuse legal proceedings to rake up communal tensions, the importance of which was clearly recognised in the Ayodhya decision.
Even though this was an appeal dealing with specific orders, the apex court has shown previously that it is willing to come up with creative orders that are not exactly by the book.
Take for instance what was done in June 2021 when it refused to stay the Delhi High Court’s orders granting bail to UAPA-accused Asif Iqbal Tanha, Natasha Narwal, and Devangana Kalita but said, to the surprise of many, that the orders should not be considered precedent for now.
This direction was not even specifically justified in any way in the order, though arguably the court has wide powers under Article 142 to take any action needed to do 'complete justice'.
If those powers could be exercised to prevent a set of bail orders from upsetting the UAPA apple cart, they could also perhaps have been used to stop suits of a similar nature being frivolously filed with regard to other mosques across the country, which are clearly intended to create communal disharmony, as Justice Govind Mathur presciently pointed out.
This is not mere speculation: there is already a deluge of litigation on the back of the Varanasi court's order, as detailed below.
If nothing else, the court could have barred the filing of fresh pleas at least in the Gyanvapi mosque case while the matter was sub-judice – on 23 May came news of yet another plea filed regarding the Varanasi mosque.
Other Such Cases
The strange road that the Varanasi case could lead us down is perhaps best reflected in a suit filed by advocate Hari Shankar Jain – who incidentally is also the counsel for the Hindu Petitioners in the Gyanvapi Mosque matter – which has now put the Qutub Minar in the dock.
A Delhi court recently directed the ASI not to remove two idols of Lord Ganesha from the Qutub Minar complex till further directions in the suit filed by Jain on behalf of his petitioners.
The petitioners in the suit allege that that the Quwwat-Ul-Islam Masjid situated within the Qutub Minar complex in Mehrauli was built in place of a temple complex and seek restoration of the alleged temple complex (comprising as many as 27 temples).
The Madhya Pradesh High Court is presently hearing a petition seeking a prohibition on Muslims from offering namaz in 11th-century Bhojshala complex located in Dhar. As pointed out in an Article 14 report, Dhar’s Bhojshala-Kamal Maula mosque is a shrine claimed by both Hindus and Muslims, and a 2003 ASI notification had allowed Muslims to offer namaz there.
Meanwhile, a Mathura court on 19 May held a suit to remove the Mathura Shahi Idgah Masjid – on the grounds that it was built over Krishna Janmabhoomi land – as maintainable.
But this is not the only petition over the Shahi Idgah Mosque. Among several others, on 19 May, an application was moved before a civil judge seeking permission to consecrate Laddu Gopal inside the mosque and to perform puja there.
On 13 May one Manish Yadav had also moved an application in the court of civil judge (senior division), Mathura, seeking the appointment of an advocate commissioner to carry out an inspection and get a video survey of the mosque conducted – quite like the one ordered by the Varanasi court in the Gyanvapi mosque case.
Further, on 17 May, an application was filed in a local court with a prayer to seal the mosque complex. According to media reports, this plea also made a reference to the Varanasi court's Gyanvapi Mosque order which had allowed the same.
The Indian Express in a report dated 18 May also quoted unnamed BJP leaders, including some office-bearers, as saying that “new developments” have triggered fresh debate within that could also include a relook at the Places of Worship (Special Provisions) Act, 1991.
Returning to the Gyanvapi issue, BJP leader and lawyer Ashwini Kumar Upadhyay, who has already filed a public interest litigation petition before the Supreme Court challenging the constitutional validity of the Places of Worship (Special Provisions) Act, 1991 (Act), has now moved the apex court seeking impleadment in the Gyanvapi mosque dispute.
No Winner in Sight
But even for members of the BJP and other right-wing groups that are presently trying to stake Hindu claims on spaces used by Muslims, the consequences of doing away with the Act or even ignoring it may prove to be cumbersome.
In conversation with The Quint, Supreme Court advocate Shadan Farasat observed that a whole range of things have happened in the history of India and that opening up the history to fresh conflict would have consequence across political lines, as it would provide a platform for all kinds of claims to crop up.
"Hindutva groups have the majority right now, so they think they can push (their demands) through, but it can come back to bite them eventually," he said.
"If the idea is to go back in history and correct the wrongs, then how can you begin only with the Mughal history?" Farasat asked. "If the project is that the so called outsiders must not have a place in the country, then your place of supremacy itself is in jeopardy, as evidence suggests that the only original inhabitants are the Adivasis and the Dravidians."
"Hindutva groups are pretty politically powerful today, but this goes much beyond that. This is the question of how we treat 5,000 years of our history. Do we treat it as a point of continuous contestation in the present? Or do we treat it as a point of acceptance that something has happened, and now we move forward – and that is what the Places of Worship Act sought to do. But if you ignore that purpose and open up the history, then it will open up in all ways."Shadan Farasat, Supreme Court Advocate
On 3 December 1992, three days before the demolition of the Babri Masjid, journalist Derek Brown had written in a report for The Guardian:
"What began as an arcane religious squabble has in recent years become the most intractable dispute in India."
What followed soon after Brown's report needs no reiteration. But it does stand testimony to the cost of allowing an "arcane religious squabble" to fester. Perhaps, therefore, the need to seal the can of old conflicts is more pressing than the requirement to seal any ancient, religious structure in any part of the country.