The Allahabad High Court’s decision on December 19 to greenlight civil suits filed by Hindu devotees seeking the right to worship inside the premises of the Gyanvapi mosque in Varanasi paved the way for Hindutva supporters to make claims on other Muslim shrines, lawyers warn.
The court was hearing five petitions, including two pleas filed by the Anjuman Intezamia Masjid Committee, which is the caretaker of the mosque, and the Uttar Pradesh Sunni Central Waqf Board. They were challenging, among other things, a Varanasi court order of April 8, 2021 allowing a comprehensive survey of the Gyanvapi mosque.
This court order had been challenged by the Muslim side on the ground that the suits were barred by the Places of Worship (Special Provisions) Act, 1991. This law specifically prohibits any changes to the religious character of a place of worship in independent India.
However, the High Court rejected this argument, agreeing with the Hindu devotees’ contention that their suits sought to clarify the religious character of the site on which the Gyanvapi mosque is situated. Whether this site is a mosque or a temple is a matter of dispute that has to be judicially settled, it held. The act, therefore, will not function as a bar since it is applicable only to undisputed places of worship, it said.
Lawyers that Scroll spoke to were critical of the High Court’s reasoning. According to them, the High Court had upended the rationale of the act.
Scroll breaks down the legal arguments advanced by the Hindu devotees to persuade the High Court as well as legal experts’ concerns about the decision.
Background
Currently, there are at least nine different cases relating to the Gyanvapi mosque pending before various courts, from civil courts based in Varanasi all the way to the Supreme Court. All these matters stem from Hindu devotees’ claim that the mosque has been built on the site of an ancient Shiva temple and that they should be allowed the right to offer prayers at the site.
Scroll had reported last year that these cases have been filed by the same set of lawyers and Hindutva groups as part of a coordinated strategy to increase the chance of getting a favourable legal order.
In May last year, a civil court had allowed for a video survey of the mosque to study the Hindu side’s claims.
On December 18, the Archeological Survey of India submitted its survey report that was conducted to find out whether the mosque had been built over a Hindu temple.
The Varanasi district court had asked the Archeological Survey of India to conduct the survey on July 21 after the Allahabad High Court had held in May that a scientific survey could be conducted of an oval object found on the mosque premises. Upon being challenged by the mosque managemen, this had been confirmed by the Supreme Court.
The Hindu litigants claimed that the object was a shivling, a representation of the Hindu deity Shiva. However, the caretaker committee of the mosque claimed the object was a defunct fountainhead in the wazu khana or ablution tank.
Disputed ‘religious character’
The Places of Worship (Special Provisions) Act had been passed against the backdrop of communal strife that had enveloped India in the wake of the demolition of the Babri Masjid in Ayodhya in 1992.
With the stated goal of promoting communal harmony and peace, the act criminalises the alteration of a place of worship for one religion or sect into that for another. It freezes the “religious character” of a place of worship as it was on August 15, 1947, and bars courts from looking into whether any place of worship has been converted after the August 15, 1947, cutoff date.
The mosque committee relied on the act to challenge the validity of the Hindu devotees’ suits, arguing that the suits couldn’t have been filed due to the act.
On the other hand, the Hindu litigants contended that the act did not define “religious character”, leaving it to be decided as per the facts and circumstances of each case. Their case is that even when a Hindu idol is destroyed, its pious purpose and legal character subsist, irrespective of a mosque being built in its stead.
This, combined with the fact that Hindu devotees had purportedly routinely worshipped on the mosque premises, showed that the religious character of the Gyanvapi premises had always been Hindu.
These arguments swung the High Court. The single judge, Justice Rohit Ranjan Agarwal, held that there was “ambiguity in the [1991 act]” due to the absence of the definition of the religious character of a place of worship. He noted that since a place of worship could not have a dual religious character of a temple and a mosque at the same time, the religious character of the Gyanvapi site as on August 15, 1947 had to be judicially determined. Pending the court’s adjudication, the “disputed place of worship” could neither be called a temple nor a mosque, held the High Court.
‘Legal dishonesty’
Lawyers that Scroll spoke with unanimously differed the high court’s interpretation of the 1991 act.
“The circumstances under which the 1991 act was passed are well known,” Delhi-based senior advocate Sanjoy Ghose said. “The government was shaken by the Babri Masjid demolition. They intended for no such other dispute to be touched.”
He described the argument that the act does not apply to the Gyanvapi mosque as “legal dishonesty” and “legal gymnastics”.
“The ‘religious character of a place of worship’ does not deal with the ownership of the land or structure of the place of worship, but with the nature of worship happening at the place,” Ghose said. “Is there namaaz happening there or kirtan?”
Delhi-based advocate-on-record Anas Tanwir agreed. “The Gyanvapi mosque has been there for years. It is not an abandoned mosque,” he said. “Namaaz has been continuously going on there for a while now. It is a property of the Wakf Board.“
According to him, the high court’s order has “sealed the fate of the mosque”. “The mosque management’s contention has been that there is no dispute as to the nature of the property,” he added. “To then hold that the nature of the place of worship is disputed is itself giving a finality to the suit.”
Another Delhi-based advocate-on-record, Amit Pai, said that it is not appropriate for courts to get into questions of religious character of places of worship altogether. “There is no way for the court to reach a satisfactory conclusion since there are so many different types of faith practiced by individuals and communities with their own beliefs,” said he.
“Divisive litigation is always antithetical to constitutional fraternity,” cautioned lawyer, columnist and author Kaleeswaram Raj, who practices in the Supreme Court and the Kerala High Court. “We are in a strange age of institutional irrationality,” he remarked, in reference to the Uttar Pradesh High Court’s ruling.
Ghose said that the Union government should come out and take a clear stand on the applicability of the act. He was referring to the challenge to the constitutionality of the act, instituted by a member of the ruling Bharatiya Janata Party, which has been pending before the Supreme Court since 2021. Scroll had reported last week that the government has not made its stand on the act clear to the court despite being asked to do so repeatedly since September last year.
‘Recipe for disaster’
The High Court’s judgment will lead to legal disputes over places of worship arising in other parts of the country, lawyers told Scroll.
“This opens a Pandora’s box,” said Ghose. “The act was a lid on other similar matters. Now that has been lifted.”
When asked about the ramifications of the judgment, Pai called it a “recipe for disaster”. “The Ram Janmabhoomi movement was the blueprint,” he said. “Due to the order, this will now happen in different parts of the country, which won’t be healthy for our country.”
According to him, any interference or action by courts or the government into how religion should function, as opposed to public and social dialogue to resolve such issues, could cause communal tension.
Calling the 1991 Act “a reactionary measure to the demolition of the Babri Masjid”, he pointed out that earlier, such issues would be resolved through dialogue and discussion between religious leaders from the Hindu and Muslim sides. “These are socio-political issues and must be resolved in a socio-political manner,” he said.
Raj offered a warning. “The Places of Worship Act was a precautionary enactment that emanated the lessons which we learnt from history,” he said. “Yet, when we turn a blind eye to this legal wisdom, perhaps only God will save India.”
