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Synopsis

On August 4th, 2023, while hearing a special leave petition (SLP),  the Supreme Court once again bore witness to impassioned debates concerning the contentious Places of Worship (Special Provisions) Act, 1991 [PoW Act].The SLP was filed by the Anjuman Intezamia Masjid Committee (which manages the disputed Gyanvapi site at Varanasi) seeking a stay on the Allahabad High Court decision of 3rd August, which had upheld the decision of the Varanasi Court for an ASI survey of the premises. Despite the unanimous affirmation of the Allahabad High Court’s decision by the three-judge bench of the Supreme Court, comprising Chief Justice Dr. D Y Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Mishra, a noteworthy aspect emerged during the proceedings. The legal representative for the Masjid Committee consistently contended that granting permission for such an inspection would directly contravene the foundational principles outlined in the PoW Act.

The decision of the Supreme Court allowing the ASI Survey was seen as a vindication for the Hindu community, which has been patiently waiting for the reinstatement of their right to worship after the temple was razed to the ground by the authoritarian Mughal ruler Aurangzeb in 1669. However, the hearing before the apex court opened the wounds of the community with respect to the historical injustice that was and is being caused by the notorious PoW Act. Notably, the petition challenging the constitutional validity of the PoW Act, filed by Shri Ashwini Kumar Upadhyay, is sub judicebefore the SC and to the utter dismay of the Hindus, the current dispensation at the Centre has failed to submit its counter-affidavit and is unreasonably delaying the matter pending before the Court. Regrettably, the Union of India has been granted five extensions by the Supreme Court, yet it remains remiss in articulating its stance on the Act’s legitimacy.

The PoW Act passed on September 18, 1991, was designed to prevent the conversion of places of worship and safeguard their religious character as of August 15, 1947. It is aimed at preserving the status quo of these sites. It states that the religious character of a place of worship existing on August 15, 1947, must remain unaltered. Legal proceedings regarding the conversion of religious character on that date are invalidated upon the Act's commencement. 

A historical overview of the origins and reasons behind the conception of the PoW Act by the P.V. Narasimha Rao Government, as well as shedding light on why one parliamentarian referred to it as the “blackest bill” in the annals of the Indian Parliament is important to extrapolate on. 

In the month of August 1991, the Places of Worship (Special Provisions), Bill was introduced in the Lok Sabha by Shri S.B. Chavan, the then Home Minister under the P.V. Narasimha Rao Government, amidst huge opposition. The slated object of the bill 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.”

Firstly, the undemocratic manner in which the bill was introduced and passed in the Parliament, evoked justified resentment among opposition members. Shri Ram Naik, former governor of Uttar Pradesh, who represented the North Mumbai Lok Sabha Constituency from Maharashtra at that time, referred to the bill as the “blackest bill” in the history of Bhartiya Parliament. In his introductory remarks, Shri Naik had said, “this Bill proposes to legalise all encroachments upon Hindu temples made during Mughal and British rule. This Bill wants to pay a premium to those who have inflicted religious insults on Hindu places of worship....”

Secondly, there was no consultation at all with the Indic communities, who would be the most affected by its implications. As pointed out by J Sai Deepak, there was no survey or study undertaken even by the Law Commission of India at the behest of the Union government, to disclose the impact of the legislation on the rights of the affected Indic communities.

Another member, Shri Jaswant Singh, had opposed the introduction of the Bill by informing the speaker of the Lok Sabha that it was outside the legislative competence of the Union. He said, “If by the introduction of a Bill, which impinges on the rights of the States of the Union, we introduce such a Bill even before considering it, then I submit with due regard that it would be outside the legislative competence of this Assembly.” Legislative incompetence is also one of the arguments raised by Shri Ashwini Upadhyaya in his petition challenging the constitutionality of the Act.

Shri Naik brought to the notice of the speaker, the purported violation of rules of procedure and conduct of business in the Lok Sabha, specifically direction No. 19 (A) which provided that the period of notice of a motion for leave to introduce a Bill under the direction shall be seven days unless the Speaker allows the motion to be made at shorter notice.

Shri Naik informed the speaker of the House,

“We have seen that this Bill is dated 22nd August, 1991. You must receive notice of motion seven days in advance. If the Bill is prepared on 22nd August, 1991, how can you receive the notice seven days in advance? So, you have not received the notice seven days in advance. This Government is trying to bypass your authority and is taking you for granted.”

Shri Naik, further pleaded an important point regarding the breach of privileges of member before the House,

“The Congress Party, in their election manifesto. had said that if they come to power. they will enact this legislation. After the Congress Party came to power, the President also delivered his Address to Parliament on 11th July, 1991. So, at least from 11th July, 1991, the Government could have started its work of preparing the Bill. But it took 43 days just to prepare the Bill. If the Government takes 43 days to prepare the Bill, should we not get even two days for studying it.”

On the same note, Shri L.K. Advani, leader of opposition at that time, expressed his condemnation about the merits and the procedure adopted by the Congress government in laying down the Bill before the House.

Interestingly, the Speaker of the House too expressed his dissatisfaction regarding the approach taken by the ruling dispensation. He said, “First of all. I would like to say that the Bill should have been given two days before for circulation. I would request all the Members and the Ministers to take into account the provisions of the rule also”.

Unfortunately, it is clear that members and the speaker were kept in utmost darkness about this Bill. This is poignantly put by the Hon’ble Speaker where he says, “…..in my opinion about this Bill, a mention was made in the President’s Address. I had received a notice on 13-8-91 saying that the Government was intending to introduce a Bill. But I had not received the Bill. I had received only a notice.” Undoubtedly so, this remains one of the most undemocratic and unparliamentary treatment of a significant issue concerning the religion and faith of the Indic communities.

The PoW Act, 1991 is undisputedly a draconian legislation, if perceived from the dharmic and civilisational lens of Bharata. At the outset, it would not be untrue to say that the manner in which it was introduced and passed in the parliament bore resemblance to a ‘stillborn child.’  It still reeks of unconstitutionality as it blatantly violates the fundamental Right to Religion- Article 25 and Article 26 (b), (c) and (d) of the Indic communities.  It fails to pass the muster of Article 14 of the Constitution as there is no intelligible differentia in treating Ram Janmabhoomi-Babri Masjid differently from other places of worship of Indic Communities. Unlike the Abrahamic faiths, Hindus do not believe in the concept of ‘one true God.’ The religious importance of Ramjanmabhoomi Sthal is equal to the Krishnajanmabhoomi Sthal or for that matter Gyanwapi Mandir. There is no hierarchical classification or even tension in the Indic communities between Shaiva (followers of Lord Shiva) or Vaishnava (followers of Lord Vishnu). 

Section 4 of the Act infringes upon the fundamental right to judicial remedy established by Article 32 of the Constitution by effectively blocking the Courts from entertaining any legal proceedings (pre-existing or new) pertaining to the alteration of the religious nature of any place of worship present on August 15, 1947. In a democratic framework, if not the Courts, where can a peaceful community seek redressal for the restoration of their religious liberties? From my perspective, the Indic community's most legitimate expectation could lie with the Parliament. The parliamentary arena, serving as the cornerstone of democracy, should intervene and revoke this stringent law during the upcoming winter session.

The Union Government ought to adopt a strong and culturally sensitive stance, especially considering its substantial majority in both houses of parliament. It is imperative that the Central Government rectify the historical injustices perpetrated both by past invaders and the 1991 P.V. Narasimha Rao government in the upcoming winter session by repealing the PoW Act 1991.