Manas Dasgupta
NEW DELHI, Dec 12: The Supreme Court on Thursday started hearing a batch of petitions challenging the validity of the Places of Worship (Special Provisions) Act of 1991 asking the Centre to file its response within four weeks while pausing ongoing surveys of places of worship, including mosques at least till the next date of hearing.
The special bench led by Chief Justice of India Sanjiv Khanna, and Justices Sanjay Kumar and KV Viswanathan which was hearing the petitions stated that no further suits shall be registered until a reply comes from the central government regarding the case.
“We want the Union Government’s response to be on record. Most of the issues here is legal,” the CJI Sanjiv Khanna said. The Solicitor General Tushar Mehta, appearing for the Centre said he needed time to respond to the petitions challenging the Places of Worship Act.
The CJI Khanna also said the top court would hear the parties out, especially with regard to what has been ruled in the 2019 Ram Janmabhoomi judgment, and says that no further civil suits will be registered till the next date of hearing. In the case of pending suits, the courts would not pass any effective interim or final orders till the next date of hearing, it added.
Among the six petitions facing the court today was one by the BJP’s Subramanian Swamy. The main petition was filed four years ago after which the government was told to respond, but never did. On the other side, certain petitions sought enforcement of the Act, which prohibits filing a lawsuit to reclaim a place of worship or seek a change in character that prevailed on August 15, 1947. Among those in this camp are a raft of MPs and political parties, including Jitendra Awhad from Sharad Pawar’s NCP faction and the RJD’s Manoj Kumar Jha, as well as Tamil Nadu’s ruling DMK.
In an order that will bring relief for petitioners in other cases – many of whom who had sought to question court-ordered surveys of mosques, on claims they were built over demolished Hindu temples – the lower courts were also directed to not pass any order or hear any new cases.
The directive to lower courts to not issue orders, interim or final, in pending cases includes those concerning the Gyanvapi Mosque, the Mathura Shahi Idgah, and the Sambhal Masjid; each faces claims by Hindu petitioners that the existing structure was built over what was once a Hindu temple. The management of the Gyanvapi and Shahi Idgah mosques were also present.
This matter cannot be decided till the union government files its response, the court said. “…the matter is sub-judice before this court… we deem it appropriate to direct that while suits may be filed, no suits can be registered (or) proceedings undertaken till further orders of this court.” “…in pending suits, courts cannot pass interim or final orders, including orders of survey, till next date of hearing,” the Chief Justice-led special bench said.
The pause comes amid violence and continuing tension in UP’s Sambhal following court-ordered surveys of a mosque last month; five people were killed in communal clashes. The violence also triggered a furious political row, with the Samajwadi Party and the Congress slamming the ruling BJP over yet another instance of a mosque – in this case constructed in the 16th century – marked for demolition over claims it had been built over a temple.
Faced with objections from petitioners’ lawyers in court, the Chief Justice said there was little value in civil courts passing orders, as the Supreme Court was set to comprehensively hear and decide the full scope of the Places of Worship Act, particularly Sections 3 and 4, which preserve the character of religious places of worship as they existed on August 15, 1947.
The case involves a slew of petitions challenging the legality of the 1991 Act. The petitioners, including advocate Ashwini Kumar Upadhyay, blame the 1991 law for barring Hindus, Jains, Buddhists, and Sikhs from approaching courts to “re-claim” their places of worship which were allegedly “invaded” and “encroached” upon by “fundamentalist barbaric invaders.”
Muslim organisations such as the All India Muslim Personal Law Board (AIMPLB) and the Jamiat Ulama-i-Hind, however, have countered. They say that these pleas, in the guise of public interest petitions, cannot challenge a Central legislation which has guarded the spirit of fraternity and secularism, virtues from the Preamble of the Constitution, as well as parts of the “basic structure” of the Constitution, through the protection of the religious character of religious places. However, the Union Government is yet to file its counter-affidavit in the matter, despite several extensions given by the court.
The Places of Worship (Special Provisions) Act, 1991 was brought in by the Congress government under Prime Minister PV Narasimha Rao in the midst of the Ram Temple movement. The Act suggests that the religious character of any place of worship as it stood on August 15, 1947, shall remain unchanged. The Act also prohibits filing lawsuits to reclaim or alter the character of such sites.
The Act was first invoked when the first legal petition on Varanasi’s Gyanvapi mosque’s origins reached the courts in 1991. Varanasi priests filed a petition in 1991 at a civil court seeking access to pray within the mosque. The priests, in their petition said the mosque was built atop the original Kashi Vishwanath temple and sought transfer of the land to Hindus. The Gyanvapi Mosque Management Committee then challenged the petition, claiming it violated the 1991 Act. This challenge was dismissed by the lower court in 1998. The committee had then approached the Allahabad High Court, which stayed the proceedings.
The Act remained unspoken of since then till 2019 when the Supreme Court passed its verdict in the Ayodhya Ram temple and Babri Masjid case. On November 9, 2019, a five-judge Constitution Bench of the Supreme Court delivered a unanimous verdict awarding the Ayodhya land to Shri Ram Virajman. It directed the Uttar Pradesh government to allocate a different plot of land in Ayodhya to the Sunni Waqf Board for the construction of a mosque.
The judgment held, in no uncertain terms, that the purpose of the 1991 Act and its cut-off date of August 15, 1947, was to acknowledge how India’s Independence presented an opportunity to “heal the wounds of the past.” The Supreme Court stated that it must abide by ‘non-retrogression’ and that it could not allow history to be used as a tool to dredge up old disputes and start conflicts.
The top court barred the institution of similar suits concerning other religious places, in accordance with the provisions of the 1991 Act. It more pithily stated that claims that stem from the actions of Mughal rulers against Hindu places of worship could not be entertained in a court of law today.
The 1991 Act was introduced by the Narasimha Rao government amid the communal turmoil that followed the demolition of the Babri Masjid in Ayodhya in 1992. While introducing the Bill in the Lok Sabha, then Home Minister S.B. Chavan stated that the “enactment of this Bill will go a long way in helping restore communal amity and goodwill.”
The law preserves the character of a place of worship as it existed on August 15, 1947, and prohibits courts from examining whether any place of worship has been altered since that date. Section 3 of the Act forbids the conversion—either in whole or in part—of a place of worship from one religious denomination to another, or even within different sects of the same religion. However, the Ram Janmabhoomi Temple dispute in Ayodhya was explicitly exempted from the Act’s purview, as the matter was already sub judice when the law was enacted.
A slew of petitions have been filed in the apex court challenging the constitutionality of the law, including one by BJP leader and advocate Ashwini Kumar Upadhyay. The petitioners argue that by freezing the status of religious sites as they stood in 1947, the law effectively prevents Hindus from “reclaiming” their places of worship that were allegedly “invaded” by Muslim rulers and British colonialists. They further point out that destroyed temples retain their original character under Hindu personal laws and cannot be considered valid mosques under Islamic law without the establishment of a waqf.
In September 2022, a Bench led by then Chief Justice of India (CJI) U.U. Lalit directed the government to file a response on its stand within two weeks. However, two years later, the Centre has still not submitted its affidavit.
In August 2021, five women associated with the Vishwa Vedic Sanatan Sangh filed a petition in a Varanasi civil court seeking year-round access to pray at a shrine located behind the western wall of the Gyanvapi mosque claiming that the mosque housed several Hindu deities.
On April 8, 2022, a Varanasi civil judge appointed an Advocate Commissioner to conduct a videographic survey to ascertain the alleged existence of these idols. The mosque committee challenged the order before the Allahabad High Court citing the 1991 Act. However, the High Court and later the Supreme Court refused to halt the survey.
In May 2022, during a hearing on the maintainability of the suit, Justice D.Y. Chandrachud remarked that the 1991 Act does not preclude inquiries into the status of a place of worship as of August 15, 1947, provided there was no intent to alter or convert its character. This interpretation marked a stark departure from the stance taken in the Ayodhya verdict, also purportedly authored by the former CJI. It also effectively broadened the scope for district courts to entertain a host of similar petitions. The High Court adopted a similar reasoning to uphold the maintainability of suits in the Krishna Janmabhoomi Shahi – Idgah dispute in Mathura.
The Supreme Court is yet to decide the preliminary issue raised in several of these suits — whether the 1991 Act bars even the filing of pleas questioning the “original” status of a religious site or just the final alteration of its nature of worship.
The top court had on March 12, 2021, sought the Centre’s response to the plea filed by Mr Upadhyay challenging the validity of certain provisions of the law. In 2022, BJP leader and former Rajya Sabha MP Subramanian Swamy sought the apex court to “read down” certain provisions to enable Hindus to stake claim over mosques at Gyanvapi in Varanasi and Mathura respectively.
On October 12, 2022, the Supreme Court asked the Centre to furnish by October 31 its affidavit in response to petitions challenging the validity of certain provisions of a 1991 law. In November 2022 again, the Supreme Court granted the Centre time till December 12 to file its response to a bunch of petitions challenging the validity of the Places of Worship Act, adjourning the case until the first week of January 2023.
In July 2023, the Supreme Court granted more time to Centre to decide on the provisions of the Places of Worship Act. While presenting Centre’s side, the solicitor general said the matter was under consideration and given the subject matter and the nature of issue involved, it would take some more time. The court has given time till October 31 for Centre to decide its stand on the case. On December 5, 2024, the CJI constituted the three-judge Special Bench headed by him to hear the case.