Indian law protecting places of worship faces judicial review amid growing clamour over mosques

India’s Supreme Court is set to examine the constitutional validity of a law that protects places of worship at a time when a worrying number of hardline Hindu voices claim some mosques were built over demolished Hindu temples.

A slew of petitions have been filed against the Places of Worship (Special Provisions) Act, 1991, by various Hindu groups and temple committees as well as a parliamentarian from prime minister Narendra Modi’s Hindu nationalist Bharatiya Janata Party (BJP).

A three-judge bench of the apex court will now decide the fate of the law on 14 November, after it receives a reply from the federal government by the end of October.

The petitioners claim their main objective in challenging the law is to “correct a historical wrong”. However, Muslims maintain that the reading down of the law will create “a feeling of ill-will, hatred and enmity between the communities”.

On 9 September, one of the petitioners’ counsels, advocate Ashwini Kumar Upadhyay, and senior advocate Rakesh Dwivedi, told the court that the matter should be referred to a constitution bench “because it is a matter of national importance,” reported The Indian Express.

Tushar Mehta, the lawyer representing the federal government said on Wednesday that two more weeks were needed to formulate a reply to the petitions, despite being granted two weeks at an earlier hearing on the matter, reported legal news portal Live Law.

The parliamentary law has protected the character of religious places as they existed on 15 August, 1947, the day India became an independent country after the end of the British colonial rule.

The hearing will begin just weeks after a court in Uttar Pradesh (UP) state on 12 September allowed proceedings on a civil suit challenging the title of the centuries-old Gyanvapi mosque and the land surrounding it.

Earlier this year, a survey team claimed it found relics of the Hindu god Shiva and other religious symbols inside the mosque’s premises.

The case over the mosque has become a recent example of Hindu-Muslim polarisation in the country, despite having existed for years right next to the Kashi Vishwanath temple in Varanasi city, regarded as holy by Hindus and also where the prime minister was elected to the country’s lower house of parliament.

The bid to file legal suits challenging the title of the mosque is in tandem with efforts to strike down the federal law.

Passed by parliament in September, 1991, section 3 of the law bars “the conversion, in full or part, of a place of worship of any religious denomination into a place of worship of a different religious denomination — or even a different segment of the same religious denomination”.

It also states in section 4(2) that any suit filed to alter the religious character of any place of worship existing on 15 August 1947 pending before any court “shall abate – and no fresh suit or appeal or other proceeding” shall be instituted.

The law states that while it extends to all of India, it does not apply to the contested Jammu and Kashmir (J&K) region.

It also specifically excludes the former site of the Babri Masjid in UP’s Ayodhya city from its ambit.

The decades-long dispute over the mosque was settled by the Supreme Court in 2019 in a major win for Mr Modi, whose party members have frequently rallied for the contruction of a temple there.

The top court’s controversial decision on the matter allowed the federal government to construct a Hindu temple at the disputed site of the historic mosque, which was demolished by right-wing activists in 1992 and allotted a separate piece of land for the construction of a mosque.

The Ayodhya verdict, however, upheld the Places of Worship Act.

It said that the law enforces “a constitutional commitment and operationalised its constitutional obligations” for religious equality and is “designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution”.

It also stated that the law was not a way to seek “solace or recourse against the actions of any number of ancient rulers”.

“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,” it added.

Despite this, petitioners challenging the Places of Worship Act have drawn attention to both the constitutional validity of the law and said the Ayodhya verdict does not apply in examining the legislation.

The Supreme Court will hear at least 15 pleas filed either in support of or against the law.

Those standing in opposition to the law include BJP members like Ashwini Upadhyay and the party’s upper house lawmaker Subramanian Swamy among others.

The case also includes applications filed by representatives of the royal family of Kashi, the Jamiat Ulema-I-Hind and the All India Muslim Personal Law Board (AIMPLB).

Speaking to The Independent, Mr Dwivedi, one of the Hindu petitioners in the case, said the law was challenged due to several reasons.

“The very first section, this act will apply to the whole of territory of India except J&K – suffers from hostile discrimination (sic),” he says.

“All states are at par today as Jammu and Kashmir is a union territory,” he says.

The Modi government had, in 2019, scrapped the constitutional special status accorded to the contested region, which is claimed by rival Pakistan. The region as a whole is also a Muslim majority area.

“So, if disputes can be raised in Kashmir then why not in other parts?”

Petitioners in the case have also objected to the 15 August 1947 cut-off date set by the law. Mr Dwivedi calls the date “manifestly arbitrary”, despite the country’s date of Independence being a well-known fact.

He explains his reasoning by saying that, before 1947, the country’s people were “subjects” of the British as well as the Delhi Sultanate and other Muslim leaders that ruled many parts of India earlier.

“We had no voice to reclaim the temple land or rebuild. When we got the voice, you say that is the cut-off date,” he says.

“Virtually you are perpetuating the atrocities of Mughal emperors and other Muslim rulers who had demolished temples to set up places of worship for Muslims,” he adds.

According to another counsel representing a Hindu group challenging the law, the thrust of their argument is two-fold.

“Section 4(2) takes away the power of judicial review which is part of the basic structure of the constitution. That needs to be examined,” the counsel told The Independent, while declining to be identified.

“Apart from that, the Ram Mandir case was excluded from the purview of this Act.”

The counsel added that the Ayodhya verdict cannot be maintained to preserve the Act as it was a civil suit and the “constitutional validity of the Act was not under challenge”.

Mr Dwivedi says while observations were made in the 2019 judgement, “they were made in the context of dispute between parties regarding Ram Janmabhoomi which is anyway exempted so there was no occasion”.

“It does not decide the issues which are arising in this case nor was the validity of the Act involved there.”

Appearing in court for the Jamait Ulama-I-Hind, Ejaz Maqbool told the Supreme Court last month that the Places of Worship Act is a federal legislation and already has a “presumption of constitutionality attached to it”.

In his petition, accessed by The Independent, filed in favour of enforcing the law, Mr Maqbool writes: “It is submitted that in blatant violation of the 1991 Act, the Muslim places of worship are being made the subject matter of frivolous controversies and suits, which are patently barred under the 1991 Act.”

“However, despite the existence of a statutory bar, such proceedings are being permitted to proceed, often with interim orders altering the status quo which has been maintained for ages in such Muslim places of worship,” he writes.

“The same is not only creating a feeling of ill-will, hatred and enmity between the communities but is also violating the fundamental rights of the Muslim Community.”

The petition cites the 2019 Ayodhya verdict to argue that the Supreme Court had settled the question of further suits being filed challenging the religious character of places of worship.

It added that such “frivolous suits” are communally polarising the entire country and are being cast in a way that “demonises” Muslims.

But petitioners on the Hindu side say that though their pleas do not mention Muslim places of worship that may have Hindu temples built on them, the striking down of the law will also benefit Muslims.

“Ultimately if the court strikes it down, Muslims can equally institute suits in case they feel that someone has wrongfully claimed some land of the mosque,” Mr Dwivedi says.

While the federal government has been asked to file its reply in the case in court, the law has already been on the agenda of the BJP.

In July, opposition lawmakers protested in parliament against the introduction of a private member’s bill in the parliament’s upper house to repeal the law.

The bill, moved by BJP member Harnath Singh Yadav, could not be introduced as the member was absent.

Several BJP members, during the ongoing Gyanvapi mosque case, have issued statements demanding the repeal of the law.

BJP members have also blamed the Congress, which was in power in 1991, for enacting the law.

In December, BJP MP Ravindra Kushwaha said the party can repeal the law to pave the way for the construction of a grand temple at Sri Krishna Janmabhoomi (birthplace of Hindu deity Krishna) in Mathura, reported Press Trust of India.

Speaking to The Independent, BJP spokesperson RP Singh said the party cannot give its opinion on the case as “the matter is sub-judice”.

“The court has asked the government to file a reply. Let’s see what the court says and what the government’s reply is,” he says.

When asked if the party will explore a parliamentary route, including an amendment to the law if the court upholds the constitutionality of the law, Mr Singh says: “It depends on what the court says and we can only comment after that.”

Legal experts, however, say that if the court strikes down the law, it will only pave the way for more such cases.

Faizan Mustafa, constitutional law expert and former vice chancellor of NALSAR University of Law, Hyderabad says: “Any law’s constitutionality can be challenged. But first the court will presume that the law is constitutional. Anyone who is challenging constitutionality has a heavy burden to prove that law is unconstitutional.”

He says to prove that a parliamentary law is unconstitutional, it is necessary to satisfy one of two tests.

Firstly, that the matter is in the state list and parliament does not have the power to form laws on subjects in the list, and second, that it is violative of any fundamental right.

“That is where these petitions very interestingly pick up both the arguments.”

“It will be interesting to see how SC reacts to these arguments. But if this law will go against Babri Masjid judgement, it will also lead to opening many cases and open a Pandora’s Box, which will not be good for a progressive democracy.”