The case filed in a Varanasi court by five Hindu women seeking to gain permission to pray at parts of the Gyanvapi Mosque throughout the year has been a contentious one from the outset – long before a Shivling was allegedly found on the premises of the mosque during a controversial video survey.
The Supreme Court is now having to assess the validity of the Varanasi court's orders to allow the survey and seal the part of the mosque where the Shivling was stated to be found – and indeed whether the district court should have entertained this case at all.
The key legal questions before the apex court bench of Justices DY Chandrachud and PB Narasimha will come down to a law passed in 1991 at the height of the tensions created by the Ram Janmabhoomi movement: The Places of Worship (Special Provisions) Act.
Under this law, there can be no conversion of a place of worship of one religion to a place of worship of another (Section 3).
The law also prohibits any legal cases from being instituted regarding the ownership or status of a place of worship that has been in existence since before 15 August 1947 (Section 4). The disputed site in Ayodhya was expressly excluded from the purview of the law.
Yet even as the top court is set to consider these questions on 19 May, there are renewed calls being made for repealing of this law – previously described by the Supreme Court as a vital step by to "protect the secular features of the Indian polity" – by BJP leaders.
Calls for Repeal of Places of Worship Act
According to the Indian Express, a senior BJP leader said that following the discovery of the alleged Shivling in the mosque,
"There could be demands for changes to the Places of Worship Act. Ultimately, the law will have to be changed. It’s not an Act created by God, it’s by Parliament and it will become part of the BJP’s agenda even if it does not want it. When the Act was made, the reality was different. Now, with the new finding, it’s going to change everything. Things will unfold in that direction."
Other BJP leaders also told the newspaper that the discovery of the alleged Shivling amounted to a change in circumstances, and that the party would have to consider changes to the position it took after the Ayodhya judgment to not pursue other claims of temples being destroyed to build mosques.
Not only Varanasi, but Mathura is also a flashpoint in this regard where the Shahi Idgah mosque is claimed to have been built on the site of the alleged birthplace of Lord Krishna. In the context of yet another case in the Mathura courts asking for transfer of ownership of the land to HIndus, several BJP leaders had previously called for the 1991 Act to be repealed.
Speaking to the press on 6 December 2021, the anniversary of the destruction of the Babri Masjid in Ayodhya in 1992, BJP MP Ravindra Kushwaha said that the BJP has had a "clear view" regarding the temple issue in Mathura from its early days, and that the central government could therefore repeal the Places of Worship Act.
“While taking note of farmers’ protests, agri laws were withdrawn. Similarly, the Modi government can withdraw this Act also,” Kushwaha told reporters.
This idea of repealing the law was also floated in the Parliament itself by BJP Rajya Sabha MP Harnath Yadav during Zero Hour on 9 December 2021:
"The meaning of this law is that it basically legitimises forcible occupation of places of worship such as Sri Krishna Janmabhoomi and others by foreign invaders… this law discriminates between Shri Ram and Shri Krishna whereas both are avatars of Lord Vishnu. This discriminates against Hindus, Buddhists, Jains, and Sikhs. I request that it be repealed as soon as possible."Harnath Yadav speech in Zero Hour, Rajya Sabha on 9 December as transcribed by The Indian Express
These growing calls for a repeal are not the only attempts being made to undermine the 1991 law. BJP leader Ashwini Kumar Upadhyay filed a Public Interest Litigation (PIL) in March this year challenging the constitutionality of the Places of Worship Act, which the Supreme Court issued notice to the Centre on.
However, both these lines of attack could be countered by an unlikely source: the Supreme Court's November 2019 judgment in the Ayodhya case.
What Did the Ayodhya Judgment Say About the 1991 Act?
Since the Ram Janmabhoomi was expressly excluded from the 1991 Act, it was not an issue per se in the Ayodhya case, where it had to be decided who had the legal title to the disputed site.
However, as the case was technically an appeal against the Allahabad High Court's decision on the matter, the Supreme Court did have to address the observations of Justice DV Sharma of the high court about the 1991 Act, in which the judge had suggested that the law did not apply to cases where there was a dispute which had begun before 1991.
These observations could have potentially opened the door to allowing the cases in Mathura and Varanasi, if they'd been allowed to stand.
But the Supreme Court took a firm view, holding that Justice Sharma's suggestions ran contrary to the 1991 law and were "erroneous".
To arrive at this conclusion, the apex court examined the text of the 1991 law, its statement of objects and reasons, the discussions around it in Parliament, and the position of secularism as one of the basic features of the Constitution.
The five-judge bench of the Supreme Court went on to say that the Places of Worship Act 1991 "protects and secures the fundamental values of the Constitution."
The judges observed that secularism is one of the basic features of the Constitution, as previously affirmed by a Constitution bench of the Supreme Court in the SR Bommai case. And the 1991 law was a vital step by the government to "protect the secular features of the Indian polity."
"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."Supreme Court in Ayodhya Judgment, para 83
The rationale for the cut-off date of 15 August 1947 in the 1991 law, which has been criticised by Hindu right wing groups and has been specifically challenged in Ashwini Upadhyay's PIL, was also clearly explained by the judges, with reference to the discussions in Parliament when the law was enacted:
"In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, the Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered."Supreme Court in Ayodhya Judgment, para 82
Perhaps most importantly, the Supreme Court in the Ayodhya judgment also clarified that the 1991 Act was a legislative intervention to ensure "non-retrogression" (para 82), which becomes very important in the context of any move to repeal it.
What Is Non-Retrogression and Why Is It Important?
The concept of non-retrogression was explained by former Chief Justice of India (CJI) Dipak Misra in his judgment in the Section 377 case:
"The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise."Para 189 of CJI Dipak Misra's judgment in Navtej SIngh Johar case, at page 117
This doctrine comes about because there is supposed to be a progressive realisation of rights in India since we have a dynamic, not a static Constitution. This means that there cannot be a regression of rights, and that society must move forward rather than backward.
The Places of Worship Act 1991, the Supreme Court held in the Ayodhya judgment, "speaks to our history and to the future of the nation."
"Cognizant 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 Ayodhya Judgment, para 83
Any attempt to repeal the Places of Worship Act, 1991 would potentially violate the doctrine of non-retrogression as it would be a regression from the protection granted to places of worship that have existed for long periods of time and to communities which have worshipped there for the last several decades (if not centuries).
Not granting this protection means a constant threat to the enjoyment of rights of worship of a community, whether a minority or majority. This is incompatible with a secular nation, where all citizens have the right to practise the religion of their choice.
Justice Misra's wording of the doctrine does seem to cover any measure by the government, including the repeal of a law which advanced the values of the Constitution.
At the same time, it could be argued that a repeal of a law which does not in itself impact the provisions of the Constitution cannot be the subject of judicial review, especially since much of this comes down to secularism as a basic feature of the Constitution, rather than one of the fundamental rights itself.
As a result, the Ayodhya judgment isn't necessarily a slam-dunk argument against repeal of the Places of Worship Act, 1991.
However, it certainly provides a solid foundation to argue against any such repeal, on sociopolitical as well as legal grounds, and thereby is an important protection for not just the Gyanvapi mosque in Varanasi, but other such places of worship across the country as well.