The ruling by a Varanasi district court on Monday that a petition by five women to worship Hindu deities within the premises of the Gyanvapi mosque could be heard by the courts was made despite the existence of the Places of Worship (Special Provisions) Act – a law that specifically bars any changes to the religious character of a place in independent India.

The law was passed in 1991, at the height of the Babri Masjid dispute, to prevent similar communal tussles over places of worship. However, the Varanasi court in its order claimed that the law, by itself, did not prevent the women from filing their claims in a court of law.

Given the charged political and communal environment in which the dispute over the mosque complex is taking place, the Varanasi court’s order has set off a heated debate in legal circles. While some lawyers agree with the judge’s interpretation of the non-applicability of the Places of Worship Act at this initial stage, other experts argue that the court should have taken a wider view of the matter.

It is clear, they say, that such petitions are being used strategically for political ends and by admitting them, they end up undermining the very aim of the Places of Worship Act: prevent disputes over religious structures.

Barred under law

The Places of Worship (Special Provisions) Act, 1991, chose the date of India’s independence, that is, August 15, 1947, on which the religious character of a place of worship would be frozen. Any change to the religious character after that would be illegal. Notably, section 4(2) of the act also barred “any suit, appeal or other proceedings” with respect to the conversion of the religious character of any place of worship in “any court, tribunal or other authority”.

In the Gyanvapi case, the mosque management committee cited section 4(2), among other laws, to say that such a suit by the plaintiffs could stand in the first place. Order 7 Rule 11 of the Code of Civil Procedure, 1908, which governs the resolution of civil disputes, mentions that any case that is barred under the law cannot be filed – that is, it is not maintainable.

In response, the plaintiffs argued that their plea was not barred under the 1991 law since they were not attempting to convert the mosque to a temple but were only asking for a right to worship.

They also claimed that they had routinely worshipped on the mosque premises till 1993. Further, they also argued that going by the 2019 Ayodhya judgement, even when an idol is destroyed, its pious purpose and legal character subsist. Thus there was no question of changing the religious character of a place and hence no violation of the Places of Worship Act. The court accepted the plaintiff’s arguments.

The Babri Masjid in Ayodhya being demolished by a Hindutva mob in 1992. Credit: Douglas E.Curran/AFP

Sound order

Some legal experts said that Monday’s order is legally sound. “The judge has discussed the complete scope of Order 7 Rule 11 and then based on this, he has examined the claims of the sides on different laws,” said former Allahabad High Court Chief Justice Govind Mathur.

In the Gyanvapi case, the district judge said that at present he will only look at the claims made by the plaintiffs, Mathur said. “This position is sound and based on the first principles of law,” he added. Mathur said that the judge has not ruled on the merits of the dispute itself, which will now be decided on the basis of evidence.

However, other experts believe that the district court’s judgement was not correct.

“When there is a law saying certain things have to be put to an end, its objectives have to be considered,” argued Delhi-based advocate on record MR Shamshad.

He explained: “There has been uninterrupted offering of namaz in the Gyanvapi premises, except in the basement portion. Anything done contrary to uninterrupted mosque activities amounts to changing the nature of the place of worship.”

Therefore, hearing a plea for Hindu prayer within the mosque premises went against the law, he said: “This judgement, in my opinion, is not in consonance with the objectives of the 1991 act.”

Following the logic of the Monday judgement, no suit can be barred. “Plaintiffs will make any pleading and the courts will say I will proceed with it,” Shamshad said.

Look deeper

Several lawyers believe that the courts ought to have also seen the evidence used to substantiate the claims in the petition.

While agreeing that looking at only the plaintiff’s claim is the thumb rule in these cases, advocate Shamshad believed that the court should have looked deeper in this case. “Everything has a certain standard of measuring prima facie value,” he said. “In this background, there is a legislation to put these things to an end and you already have pending litigations.”

Another Supreme Court advocate on record Anas Tanwir said that in these cases, “you have to look at how a plaint is substantiated.” Otherwise, anyone can file a case using a random set of facts.

Further, Shamshad pointed out that the Gyanvapi matter has been under litigation since 1991 and according to his recollection, the argument about Hindus worshipping inside the mosque has never been raised before. Thus, the courts should have examined the petition.

“In this instance, suits are being filed at every stage by improving their pleadings,” Shamshad said.

In May, Scroll.in had reported that there are at least 10 petitions relating to the Gyanvapi mosque pending in various courts. Lawyers from the Hindu side, who were a part of the case, had also said that these petitions are being filed strategically to get incremental relief from courts.

Often in such cases at the intersection of law, politics and religion, the fact that the case is pending in courts itself allows the conflict to simmer. “Things which could have been done at a political level, is being done through judicial process,” Shamshad said.

‘Clever drafting’

Is a court bound to only look at the plaintiff’s arguments when deciding on maintainability?

There are instances where the Supreme Court has also said that the courts must examine petitions and not just rely on what the plaintiffs state. The mosque committee had cited a 1977 Supreme Cout case which had said that while deciding maintainability, the court ought to take a “meaningful reading” of the submission. If through “clever drafting”, a cause of action is being created, then “the court must nip it in the bud at the first hearing”. The Supreme Court had noted that an “activist judge is the answer to irresponsible law suits”. However, this was not accepted by the district court.

Mathur, who had examined the maintainability application filed by the mosque committee, believed that the defendants could have put a better case forward and asked the court to look into the prima facie evidence supporting its claim of having worshipped on the premises till 1993. “My sense is they are being advised more by constitutional and activist lawyers, instead of civil lawyers,” he said.

He said that the Supreme Court” must come into this” and clarify the law around the maintainability of these cases.

Presently, there are appeals regarding different aspects of the Gyanvapi case pending before the Allahabad High Court as well as the Supreme Court. Further, the Supreme Court is also hearing constitutional challenges to the Places of Worship Act.