Constitutional Validity of the Places of Worship Act

By Aftab Alam, New Age Islam 17 February 2025 A Supreme Court (SC) bench headed by Chief Justice Sanjiv Khanna and comprising Justices Sanjay Kumar and KV Viswanathan is set to hear the batch of petitions challenging the constitutional validity of the Places of Worship (Special Provisions) Act, 1991 (POWA), on February 17, 2025. The POWA has recently come into the limelight following the mosque-temple disputes sprouting across the country, with a rising number of copycat suits being filed by Hindu groups demanding surveys of many old mosques, claiming that they were built on the former sites of Hindu temples. On a plain reading of the POWA, the religious character of a place is not to be disturbed, and as such, they are beyond the purview of the usual civil proceedings. However, an oral observation by then Chief Justice, D Y Chandrachud, on May 21, 2022, that ascertaining the religious character of a place of worship is not barred as long as there is no intention to alter or convert its nature, opened a Pandora’s Box of such cases. Taking cognizance of the simmering temple-mosque disputes, the SC bench on December 12, 2024, had barred civil courts across the country from registering fresh suits disputing the existing character of any religious structure or ordering surveys of disputed religious places until the next date of hearing or further orders. It further directed the civil courts, whose orders played an active role in escalating mosque-temple disputes, to refrain from undertaking any proceedings in all such pending cases till further orders. The bench said that civil courts cannot race with the SC. The bench had also asked the Union Government to file its counter-affidavit within four weeks, which has avoided filing a definitive response on the matter ever since the SC admitted petitions challenging the POWA in March 2021. According to media reports, there are about 18 suits concerning 10 religious shrines pending in various civil courts. Most of these suits have been filed in the BJP-ruled states. These suits seem to be part of a well-orchestrated plan and revanchist politics of the Hindu right, searching temples beneath every Muslim mosque, monument, and other historical places to keep the communal pot boiling for electoral gains. Even the Rashtriya Swayamsevak Sangh (RSS) chief Mohan Bhagwat’s categorical statement made in June 2022 that "there is no need to look for a Shivling in every mosque" and his repeated advice to exercise caution have not deterred the Hindu organisations from filing suits seeking surveys of mosques in various parts of the country. Most recently, in November 2024, a court in Sambhal in Uttar Pradesh hastily passed an ex-parte order permitting a survey of the mosque, causing a street clash in which at least five people were killed and many more injured. Later on November 27, a civil court in Ajmer admitted a suit claiming that a Lord Shiva temple existed at the site of the 13th-century Dargah of the much-revered Sufi mystic Khwaja Moinuddin Chishti in Ajmer, and on December 6, 2024, a district court directed the registration of a suit disputing the existence of a Hindu temple under the Atala Mosque in Jaunpur. Earlier in March 2024, the Madhya Pradesh High Court ordered the ASI to conduct a survey of the 13th-century Bhojshala-Kamal Maula mosque complex in Dhar after admitting a suit disputing the site as a temple dedicated to goddess Saraswati. And on September 6, 2023, a civil court in Lucknow admitted a suit contending that the Teele Wali mosque was built after demolishing a Hindu religious structure, Laxman Teela, during the reign of Mughal emperor Aurangzeb, and, therefore, the original Hindu religious structure must be restored at the site. And in May 2022, a civil court ordered a survey by an advocate-commissioner of the Gyanvapi mosque premises to determine if it was built on top of a Hindu temple. In May 2022, a senior BJP leader and former deputy chief minister of Karnataka state, KS Eshwarappa, alleged that Mughals had destroyed 36,000 Hindu temples and he would “reclaim all those temples one by one.” Such claims are often made based on a false narrative that most mosques have been built over sites after destroying Hindu temples. However, Richard Eaton, a professor of Indian history at the University of Arizona, states that, barring a few, the claims of the destruction of many thousands of Hindu temples are “outlandish, irresponsible, and without foundation” and without any historical evidence. The POWA was enacted by the P.V. Narasimha Rao-led Congress government in September 1991 during the peak of the movement to construct a Ram temple at the site of the Babri Mosque on the assertion that this was the birthplace of Sri Ram and a Hindu temple existed till it was destroyed on Babar's command and a mosque was erected in its place. The Babri Mosque was subsequently razed to a rabble a year later on Dec. 6, 1992, by a frenzied group of kar sevaks, which was described by the SC in M. Ismail Faruqui v. Union of India (1994) as an act of "national shame.” The SC observed, “What was demolished was not merely an ancient structure but the faith of the minorities in the sense of justice and fair play of the majority. It shook their faith in the rule of law and constitutional processes. A five-hundred year-old structure, which was defenceless and whose safety was a sacred trust in the hands of the state government was demolished.” While explaining the object and purpose of the POWA, then Home Minister S. B. Chavan said that it was necessary “in view of the controversies arising from time to time with regard to the conversion of places of worship, which tend to vitiate the communal atmosphere… Adoption of this bill will effectively prevent any new controversies from arising in respect of the conversion of any place of worship…” It was hoped that the POWA would help the preservation of communal harmony in the long run, as it would bring an end to all temple–mosque disputes forever. Thus, the law was an attempt to ring-fence the Ram Janmabhoomi dispute and to ensure that there was no replication of such conflict elsewhere in the country. This hope was reinforced when the SC in the Ram Janmabhoomi-Babri Masjid judgement praised and validated the POWA. However, the hopes generated by the POWA vanished very soon as a series of new civil suits began to be filed reclaiming places of worship of other religions with a plea to hand over the sites of the many mosques, which, according to petitioners, were allegedly built after razing temples. The civil courts were flooded with petitions challenging Muslim places of worship, especially after the SC, in a controversial judgement, decided to hand over the site of the demolished Babri mosque in Ayodhya to Hindu claimants to build a Ram temple despite observing that there was no evidence to support the allegation that the mosque was built after destroying a Ram temple. The May 2022 observation of the then CJI Chandrachud, who is widely believed to have authored the Babri judgement, seems to have become the fresh catalyst for suits seeking to “reclaim” temples allegedly destroyed by Muslim invaders. The POWA is a short legislation consisting of merely seven sections. While Section 3 of the Act bars any person from converting any place of worship of any religious denomination into one of a different religious denomination or sect, Section 4 seeks to ensure that the religious character of a place of worship is preserved as it was on August 15, 1947. Most importantly, Section 4(2) provides that with the commencement of this Act, all pending suits, appeals, or other proceedings with respect to the conversion of the character of a place of worship will stand abated with the exception of the Babri mosque case in Section 5, and no fresh suits, appeals or other proceedings will be entertained by any court, tribunal, or other authority. However, Section 4 (3)(a) of the Act exempts the application of the Act to a historical monument or an archaeological site, a suit that has been finally settled or disposed of either by the parties or the court. Any individual who dares to defy the prohibition under the Act could also face a punishment of imprisonment for a term which may extend to three years, and also, a fine. Those who aid and abet or participate in a criminal conspiracy to commit this offence will also face the same punishment. While a Lucknow-based trust, Vishwa Bhadra Pujari Purohit Mahasangh, and the BJP leaders Ashwini Upadhyay and Subramanian Swamy have moved SC challenging the constitutional validity of the POWA, multiple intervention applications have also been filed by the Members of Parliament, political parties and prominent Muslim organisations, including Thol Thirumavalavan, Manoj Kumar Jha, Asaduddin Owaisi, and the management committee of Shahi Masjid Eidgah in Mathura, the Jamiat Ulama-i-Hind and the All-India Muslim Personal Law Board (AIMPLB) among others, seeking its validity and strict enforcement. The Union government is yet to submit its stand on the validity of POWA to the SC. However, it has so far maintained that Parliament was authorised to promulgate such a law under the residuary powers provided under Entry 97 of the Union List. In an interesting development, the Committee of Management of Mathura’s Shahi Masjid Eidgah moved the SC on January 21, pleading that the right of the Centre to file its reply in the matter should be closed as it failed to honour the court’s directive. Most of the pleas challenging the constitutionality of the POWA argue that Sections 2, 3 and 4 of the Act violate their fundamental rights, especially the rights to equality and non-discrimination under Articles 14 and 15, the right to life under Article 21, and the freedom to practice religion under Articles 25, 26, and 29 of the constitution. They contend that the Act is discriminatory as it imposes a one-sided restriction on Hindu, Buddhist, Jain, and Sikh communities from restoring their places of worship allegedly converted during foreign invasions. It is also contended that the POWA bars judicial review, which is a part of the basic structure of the Constitution and therefore cannot be taken away by legislative action. They also question freezing the character of places of worship as they existed on 15 August 1947, arguing that it limits the right to exercise freedom of religion, and undermines the principle of secularism. They argue that the temples destroyed by Muslim and Christian invaders remain as temples as deities are ‘eternal’ and do not lose ownership over their lands with the mere fact that their idols were destroyed. They also contend that these places cannot be declared as valid mosques even under Islamic law, as the land on which they exist today was not legally acquired to create a Waqf. In yet another suit, it has been argued that the central government did not have the power to pass the Act, arguing that it was passed under the guise of public order, which is a state subject. On the other side, the petitioners supporting POWA’s constitutional validity and seeking its strict enforcement emphasise that maintaining the religious character of places of worship as they existed on August 15, 1947, is essential for preserving secularism and maintaining communal harmony in the country and that any alteration to the Act could jeopardise the secular fabric of the country. It must be recalled that in M. Siddiq v. Mahant Suresh Das (2019), popularly known as the Ram Janmabhoomi-Babri Masjid case, the SC, while establishing the constitutional validity of the POWA, appreciated it for preserving the religious character of places of worship as of August 15, 1947. The SC cited the observations of Malini Bhattacharya, who explained that this cut-off date is significant “…because on that date we are supposed to have emerged as a modern, democratic, and sovereign state thrusting back such barbarity into the past once and for all. From that date, we also distinguished ourselves…as a state which has no official religion and which gives equal rights to all the different religious denominations. So, whatever may have happened before that, we all expected that from that date there should be no such retrogression into the past.” (Emphasis supplied by the bench). The SC further reiterated that “historical wrongs cannot be remedied by the people taking the law into 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.” The SC bench not only upheld the constitutional validity of the POWA but also positioned it within the framework of the basic structure of the constitution, which, in accordance with the Kesavananda Bharati (1973) judgment, remains inalterable. It noted, “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.” It further stated that the POWA “... 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. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.” It is high time that the SC steps in firmly to uphold the constitutional validity and integrity of the POWA and put a permanent lid on the Pandora's box opened by the former CJI’s observations. One must realise that increasing pleas challenging the status of various mosques not only challenge the secular fabric of our polity but also vitiate the country’s communal harmony. The use of these petitions to create and further certain narratives for political gains is dangerous. The government is duty bound to defend the POWA and ensure its effective implementation. The decision of the SC is expected to clear the air. … Aftab Alam is Professor at Aligarh Muslim University and heads its Strategic and Security Studies Department. URL: https://www.newageislam.com/current-affairs/constitutional-validity-worship-act-supreme-court-powa/d/134644 New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism