(Raj Shekhar and Sana Raghuvanshi, both are students of National University of Study and Research in Law, Ranchi)
Featured Painting – “Worship” by Ferdinand Hodler
The controversy surrounding the Places of Worship Act, 1991 (‘PWA’ or ‘Act’, hereinafter) fails to end even after almost three decades of its enactment. The recent judgment of the Supreme Court of India in the famous Ayodhya case has reignited this blazing debate and recently a Hindu body has moved to the Supreme Court challenging the Act’s mandate for maintaining “religious character” of holy structures as they existed on August 15, 1947. This is being done in an attempt to open the litigation route for ‘reclaiming’ disputed religious sites other than the Ram Janmabhoomi in Ayodhya, which until now have been statutorily banned in accordance with Section 4 of PWA. On the onset of these issues, it becomes pertinent to understand the constitutional validity of the PWA while also legally and logically analysing its enactment objectives as well as its role in the present-day scenario. The article aims to analyse the constitutional validity of the Act and after an examination of legislative as well as judicial views on PWA, tries to draw a coherent conclusion on the same.
WHY WAS THE PLACES OF WORSHIP ACT, 1991 ENACTED?
The provisions of an Act and the intention behind them can never be understood clearly in toto, until and unless the circumstances and objectives which led to the enactment are studied rationally and without prejudice. When we look at the time frame of enactment, the PWA was enacted in the 1990s when the Babri Masjid-Ram Janmabhoomi dispute was at its zenith. The Vishwa Hindu Parishad (VHP) was pressing on the conversion of two other mosques as well, namely the Gyanvapi mosque in Varanasi and the Shahi Idgah in Mathura. As a result of the existing strained situation and growing communal tension, the P.V. Narasimha Rao government enacted a special Act to freeze the status of places of worship as they were on August 15, 1947. However, the Act under Section 5 specifically kept the disputed structure at Ayodhya out of its purview, with the rationale that it was the subject of a prolonged litigation which was almost inching towards resolution. However, the critics saw this exception as one intended to provide the much-needed scope for a possible negotiation between the conflicting parties. In the words of S.B. Chavan, the then-Home Minister, the Act was seen as a measure to provide and develop the glorious Indian traditions of love, peace and harmony. Thus, the main objective was the preservation of communal harmony in the long run.
CONSTITUTIONAL CRITIQUE: THE LOK SABHA DEBATES AND THE CONSTITUTION OF INDIA
Though the above-mentioned paragraph specifically points out to the objectives with a special emphasis on the then-existing scenarios, the objective of implementing this act was clearly laid down in the act’s title which clearly evinces the intent of Parliament in enacting the act, which 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. In the landmark case of M Siddiq (D) Thr Lrs v Mahant Suresh Das & Ors. the Apex Court had emphasised as to how the Act is intrinsically related to the obligation of a secular state, which forms a feature of the basic structure of Indian Constitution. Further, the court has recently pointed out the noble objective of this act in the Ayodhya Case where the Hon’ble Court was of the view that “It (the act) reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value.” Speaking of secularism, in the landmark case of SR Bommai v Union of India, it was held while discussing secularism that it is a constitutional goal and a basic feature of the Constitution as affirmed in Kesavananda Bharati v. State of Kerala and Indira N. Gandhi v. Raj Narain. Therefore, any step inconsistent with this constitutional value is, in plain words, unconstitutional.
Deliberating upon the Parliament’s legislative competence in enacting a law which in a way dealt with places of pilgrimages or burial grounds, which were under the entry 10 and 7 of State List respectively, we need to understand that such places, i.e. places of pilgrimages and burial grounds jointly, have not been explicitly made subject of a particular list and can be inferred only while reading two entries simultaneously. This would in a way mean that no entry pertaining specifically to such places exist and hence the Union government can make use of its residuary power under Entry 97 of the Union List, which states that the Parliament has exclusive power to make laws with respect to any matter not enumerated in List II or III, to enact the law in question. Thus, there exists no grounds to raise questions as to the legislative competence of the Parliament in this regard.
The major thrust against the validity of this Act is based on the potential violation of Article 25 of the Indian Constitution and the negation of law, which occurs due to the barring of cases with respect to contesting the status of places of worship. This would in a way mean that that judicial remedy to any such dispute has been curbed by the provisions of act which is generally not permitted. However, any such allegations need to be probed under the lens of law to actually arrive at its validity or invalidity. When it comes to Article 25, it plays a major role in ensuring the freedom of conscience and the right to freely profess, practise, and propagate religion, but it also enables reasonable restrictions which may be subject to public order, morality and health or other rights in Part III of the Constitution. Even before delving into this case of exceptions, a major question needs to be answered – Whether a religious monument, which was constructed in the past and later converted, can be made to fall under the rightful exercise of the right to continuous holding of a particular practice of their religion or right to freedom of conscience?
The two paradigms seem to be non-congruent as while the first is a question of the legal sphere, the latter is more ‘belief’ oriented. So, seeing a bar on conversions as a direct encroachment of the right to freedom of conscience seems non-justifiable. However even if it’s justified, the government has to all extent powers to impose justified restrictions. The past has been a good teacher when it comes to communal suits and history has witnessed blazing trials on riots. This coupled with the communal divide that British intentionally created and the existing trends of ongoing communal tension seem like a justified and credible ground for restrictions. Thus, the question of encroachment of rights casts no shadow on the validity of PWA, 1991.
The other widely-circulated argument against the validity is the consonance that has been drawn between the two cases of PWA 1991 and the Acquisition of Certain Area at Ayodhya Act, 1993. In the case of Dr. M. Ismail Faruqui v. Union of India and Ors. the Supreme Court had declared Section 4(3) of the Acquisition of Certain Area at Ayodhya Act, 1993 which read “If, on the commencement of this Act, any suit, appeal or other proceedings in respect of the right, title and interest relating to any property which has vested in the Central Government under section 3, is pending before any court, tribunal or other authority, the same shall abate.” as unconstitutional. The provision in PWA under question is Section 4 which has similar wordings, yet a completely different stance. While the Section 4(3) of Ayodhya Act talks about the right, title and interest relating to a property, which are all legally protected rights, the section 4 of PWA talks about the issues of suits related to ‘the conversion of the religious character of any place of worship’.
While the wordings may look similar, one protects the ‘legal right’ and the other protects the original ‘status’. Therefore, as the former is a legal aspect, the extinction of judicial remedy to contest it is against the spirit of rule of law, thereby making it unconstitutional. However, the latter being majorly connected to the ‘historical’ nature, which may or may not be conclusively determined, a bar on its contesting cannot be placed on the same pedestal. Hence, such comparison is flawed in itself and cannot be used for declaring provision in question unconstitutional as there exists no ‘negation’ of the law.
CONCLUSION
India is known for its civilization and its greatest contribution to the world civilization is the kind of tolerance, understanding, assimilative spirit and cosmopolitan outlook that it shows. Everybody needs to understand that she owes his allegiance to the Constitution, and to the unity of the country, the rest of the things are immaterial. The Supreme Court has time and again upheld the enactment of PWA as one that preserved the constitutional value of secularism by not permitting the status of a place of worship to be changed. The state has, by enacting the law, enforced a constitutional commitment and operationalised its constitutional obligations to uphold the equality of all religions and secularism, which is a part of the basic features of the Constitution. As the Act imposes a non-derogable obligation towards enforcing our commitment to secularism, it tries to uphold the dignity of Indian democratic philosophy. Non-retrogression is a foundational feature of the fundamental constitutional principles, of which secularism is a core component and hence scrapping of this Act could be devastating for this non-retrogressive policy. Also, the Act has in a way put an end effectively to the policy of punishing for ‘historical wrongs’. From the above analysis, the Act seems to be perfectly constitutional and does not encroach on fundamental rights, either directly or indirectly.
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