Mohammed Naushad Khan studies the Places of Worship (Special Provisions) Act, 1991, which prohibits ‘conversion of any place of worship’ and promises ‘the maintenance of the religious character’ of a place of worship as on 15th August 1947.
The debate on Places of Worship (Special Provisions) Act, 1991 has once again started in the backdrop of Gyanvapi Masjid controversy amid claims and counter claims on the centuries old mosque as well as some other mosques in the country. On May 16, a Varanasi court ordered to seal the place where a ‘Shivling’ was said to be found in the Gyanvapi Masjid.
The Muslim community brushed aside the claim of a ‘Shivling’, asserting that it is a fountain. The debate is now on whether it is a fountain or a ‘Shivling’ and whether the Places of Worship Act 1991 will be applicable to it or not.
Many are also apprehensive that the Government may go for some kind of amendment to the Places of Worship Act 1991. The big question: Will the Gyanvapi Masjid in Varanasi go the Babri Masjid way or will the Government abide by the Places of Worship Act 1991 to solve the issue amicably? The Supreme Court will have to play a bigger role as the Custodian of the Constitution. We all know that a Mathura court has said that the Places of Worship Act 1991 won’t apply to the city’s Shahi Eidgah Masjid case.
The Gyanvapi Masjid issue and some other related controversies in the various parts of India are likely to dominate the political scene till 2024 general elections. The controversies are likely to be tossed up time and again like that of Babri Masjid and may emerge as an important political tool to polarise the society at the times of assembly elections in the months to come and the general elections 2024.
The role of courts of law is going to be very important and it is yet to be seen whether the courts will go the Babri Masjid way or will they ensure that the rule of law prevails. The BJP captured political power through Babri Masjid controversy. But one may wonder what they want to achieve through Kashi, Mathura and so on. Is Kashi or Mathura tip of the iceberg of what they want to achieve? Or is it a wild guess to make? Or, are we reading too much between the lines?
As for the Supreme Court, it would be a litmus test to deliver its judgement?
According to Sanjay Hegde, a senior Supreme Court lawyer, “First, this government must make a statement in Parliament that it has no intention of any amendment to the Places of Worship Act of 1991 and that it intends to maintain status quo in all religious places that were extant on August 15 1947. A court dealing with the matter, could then record the government’s statement in a suitable legal proceeding. Courts should also not entertain any proceedings that attempt to subvert the act of 1991 and must dismiss such applications at the outset. However it is highly doubtful that any such statement will be forthcoming from the government, but courts must take note of the Act and implement it by refusing to entertain any attempts to change the status quo.”
Another Supreme Court lawyer, MR Shamshad, while sharing his perspective on the on-going controversy, said, “Is this the way one treats religious places of minorities in the country? Whatever happens tomorrow about the orders passed today or earlier, should we not agree that the order passed today is completely illegal order? Irrespective whether this order is stayed or not by the higher courts; it has succeeded in creating illegal evidence through court process which will have effect of creating law and order problems.”
“In Varanasi, we are going the Ayodhya way! Where has the 1991 Act gone about which the SC stated that ‘it protects and secures the fundamental values of the Constitution’. Even if the courts want to correct historical wrongs as set up by the plaintiffs – can that be done? Under the pretext of historical wrong, fabricated history is being used as an instrument to oppress a section of the present generation.”
Advocate Nasir Aziz, president of SAMLA (South Asian Minorities Lawyers Association), said, “There is enough protection to the religious places of all denominations by virtue of provisions contained in the Places of Worship Act. We have seen what happened to the Babri Masjid and we have also seen that the dispute catapulted BJP into a formidable force and gave them power on a platter. After the verdict in the Ram Janmabhoomi case, they have lost the Babri issue and now to keep the issue alive they have raised the issue of Gyanvapi Masjid and so on.”
Nasir added, “I have absolutely no doubt in my mind that if the Places of Worship Act is implemented honestly and without any bias by court, every religious place of worship in this country would be protected. In Gyanvapi Masjid case, the court is not doing its duty and rather playing to the tune of the power centre.”
The fundamental question is whether the Places of Worship Act of 1991 will be applied in letter and spirit or will the Gyanvapi Masjid in Varanasi also go the Babri Masjid way?
As per the Places of Worship Act, 1991 passed by the Parliament, it prohibits “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”. The Act “extends to the whole of India except the State of Jammu and Kashmir.”
As per Section 3 of the 1991 Act, “No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.”
And Section 4(1) of the Act further clarifies it in no ambiguous terms: “It is hereby declared that the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day.”
Section 4(2) of the Act maintains: “If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority.”
However this Act was not applicable to the Babri Masjid case. It is strongly hoped the Government, abiding by the provisions of the Places of Worship Act, 1991 while dealing with any kind of controversy related to the places of worship at Kashi, Mathura or elsewhere, maintain the religious nature of the said places as on 15th August 1947.